Appeals after dismissals without prejudice, Perlman appeals, cumulative finality, qualified-immunity appeals, and pendent appellate jurisdiction.
August 4, 2020
Last week saw a slew of Ninth Circuit decisions of note. The court addressed appeals after some claims have been dismissed without prejudice, Perlman appeals, and cumulative finality. The Seventh Circuit also had its own cumulative-finality decision when a plaintiff appealed rather than amend its complaint. Several courts addressed the facts they should take as true for purposes of a qualified-immunity appeal. And the Eleventh Circuit declined to extend pendent appellate jurisdiction over a venue issue in an arbitration appeal.
- The Ninth Circuit Divided Over Its Rule for Appeals After Dismissals Without Prejudice
- The Ninth Circuit Clarified That Perlman Appeals Require a Claim of Privilege
- Several Courts Addressed the Factual Basis for Qualified-Immunity Appeals
- Premature Notices of Appeal and Cumulative Finality
- No Pendent Appellate Jurisdiction Over Venue in an Arbitration Appeal
The Ninth Circuit Divided Over Its Rule for Appeals After Dismissals Without Prejudice
In Meeks v. Blazin Wings, Inc., the Ninth Circuit dismissed an appeal because the plaintiff had voluntarily dismissed some of his claims without prejudice.
Meeks is short on details. But it appears that the plaintiff sued several defendants, and the district court dismissed the claims against one of them. The plaintiff subsequently voluntarily dismissed the other defendants without prejudice. The plaintiff then tried to appeal the dismissal of his claims against the first defendant.
We’ve recently seen several examples of the issues that can arise when plaintiffs lose on some of their claims and then voluntarily dismiss the rest without prejudice. Courts worry that these plaintiffs are trying to manufacture an otherwise-improper interlocutory appeal. A decision resolving some (but not all) claims in a multi-claim suit is normally not final or appealable. Plaintiffs occasionally try to skirt this rule by voluntarily dismissing their remaining claims without prejudice, appealing the district court’s decision, and—regardless of the appeal’s outcome—later refiling the voluntarily dismissed claims. Granted, the defendants in those refiled claims might have new defenses, such as claim preclusion or a statute of limitations. But because the claims were dismissed without prejudice, there is no impediment to refiling them in federal court.
The courts of appeals have developed various ways to deal with appeals after a dismissal without prejudice. The Ninth Circuit will allow an appeal so long as (1) “the record reveals no evidence of intent to manipulate [the court’s] appellate jurisdiction” and (2) the district court is meaningfully involved in, and approves of, the voluntary dismissal. Both of these conditions were missing in Meeks. The district court was not involved in the voluntary dismissal. The Ninth Circuit also saw evidence of an intent to manufacture an interlocutory appeal. And the court refused to credit the plaintiff’s statements at oral argument that he would not pursue the voluntarily dismissed claims.
Dissenting, Judge Miller contended that once the remaining claims were voluntarily dismissed, district court proceedings were over and its decision was final and appealable. Granted, the plaintiff’s voluntarily dismissed claims could not be appealed; the plaintiff got precisely what he asked for on those claims. But the voluntary dismissal here was under Federal Rule of Civil Procedure 41(a)(1), which does not require district court approval. Denying appellate jurisdiction left the appeal “in a jurisdictional no man’s land.” “In the district court, no further proceedings will take place, but for purposes of the court of appeals, there has been no final judgment.” And although the plaintiff created his own problem by voluntarily dismissing claims without prejudice, he eventually addressed the matter by disclaiming any right to refile the voluntarily dismissed claims.
Meeks v. Blazin Wings, Inc., 2020 WL 4364007 (9th Cir. July 30, 2020), available at the Ninth Circuit and Westlaw.
The Ninth Circuit Clarified That Perlman Appeals Require a Claim of Privilege
In In re Grand Jury Investigation, the Ninth Circuit held that a company could not immediately appeal a grand-jury subpoena directed to one of its officers.
Simplifying a bit, a grand jury subpoenaed both a company and one of its officers. The grand jury was investigating fraud in a corporate acquisition, though details are scant given the secrecy of the grand-jury proceedings. The district court rejected the company’s motion to quash both subpoenas and ordered that both the company and the officer comply. The company refused and was held in contempt. But the officer agreed to produce the requested documents. The company then sought to appeal both its contempt citation and the denial of its motion to quash the subpoena directed to its officer.
The Ninth Circuit held that it lacked jurisdiction to review the denial of the motion to quash the officer’s subpoena. Under the Perlman doctrine, a privilege claimant can appeal a discovery order directed to a third party. But there was no claim of privilege in Grand Jury Investigation. So there was no basis for a Perlman appeal.
The company instead argued only that it had an “ownership interest” in the documents that the officer would produce. That wasn’t enough for appellate jurisdiction. The Ninth Circuit explained at some length that Perlman appeals require a claim of privilege. Although the court might not have mentioned the privilege requirement in prior cases—focusing instead on whether the third-party target of the subpoena would risk contempt—a claim of privilege was essential. Perlman appeals exist to protect the confidentiality of allegedly privileged information; they permit some appellate review before the information is disclosed and secrecy forever lost.
As for the company’s appeal of its contempt citation, appellate jurisdiction was secure. A target of a discovery order can disobey the order, be held in contempt, immediately appeal the contempt citation, and—in that appeal—obtain review of the underlying discovery order. That’s what the company did in Grand Jury Investigation. On the merits of its appeal, however, the Ninth Circuit affirmed the denial of the motion to quash.
In re Grand Jury Investigation, 2020 WL 4280951 (9th Cir. July 27, 2020), available at the Ninth Circuit and Westlaw.
Several Courts Addressed the Factual Basis for Qualified-Immunity Appeals
Defendants have a right to immediately appeal from the denial of qualified immunity. But when a district court denies immunity at the summary-judgment stage, the scope of that appeal is limited. With few exceptions, defendants must take as given the district court’s assessment of the summary-judgment record—that is, what facts a reasonable jury could find based on that record’s contents. They can appeal to argue only that those facts do not make out a violation of clearly established federal law. Yet defendants regularly flout this jurisdictional limit. And courts sometimes struggle with the narrow exceptions to this rule.
This week saw three examples of note.
First is Reavis v. Frost, in which the Tenth Circuit rebuffed a defendant’s efforts to challenge the facts. Reavis involved a fatal shooting. Police stopped the decedent, mistakenly thinking that he was a suspect in a stabbing. The decedent tried to drive away. But as he was driving away, the defendant police officer shot him. The decedent’s estate sued for excessive force. And the district court denied the officer’s request for qualified immunity. The district court concluded that a reasonable jury could find that all shots were fired behind and to the side of the truck. That would mean the officer fired fired when the decedent did not pose any risk of harm to the officer or anyone else. The officer then appealed.
A majority of the Tenth Circuit affirmed the denial of qualified immunity. Part of its analysis rejected the defendant’s attempt to dispute the facts that the district court took as true in denying immunity. “The crux of [the officer’s] argument,” the Tenth Circuit noted, was “that the district court incorrectly concluded that [the decedent] posed no immediate danger to anyone at the time” of the shooting. The court explained that it lacked jurisdiction to address this argument:
We lack jurisdiction to review [the officer]’s challenge to the facts the district court relied on to conclude that a reasonable jury could find [the decedent] posed no immediate danger to anyone at the time [the officer] fired his weapon.
Taking as true the facts that the district court thought were supported by the summary-judgment record, the Tenth Circuit affirmed the denial of qualified immunity.
A second example comes from Lennox v. Miller, in which the Second Circuit similarly rejected the defendants’ attempts to challenge the factual basis for an interlocutory qualified-immunity appeal. The defendants’ brief “repeatedly glosse[d] over relevant disputed facts, such as whether [a defendant] put his body weight on [the plaintiff], or treat[ed] disputed facts, such as the existence and extent of [the plaintiff]’s physical resistance, as undisputed.” The Second Circuit rejected these improper attempts to dispute the assumed facts.
And concurring in Estate of Valverde v. Dodge, Judge Matheson contended that a video of a police shooting was not sufficiently clear to warrant application of the blatant-contradiction exception to the general bar on reviewing the genuineness of fact disputes. Relying in part on a video of the shooting, the majority in Valverde reversed the denial of qualified immunity, concluding that no constitutional violation occurred. Judge Matheson read the majority’s opinion to conclude that the video blatantly contradicted the version of facts that the district court had taken as true. That blatant contradiction permitted the majority to come to its own assessment of the record. But as Judge Matheson saw things, the video was not sufficiently clear to warrant the blatant-contradiction exception. So he would have avoided any issues concerning the district court’s version of events. He still would have reversed, however, because the law was not sufficiently clear.
Reavis v. Frost, 2020 WL 4331340 (10th Cir. July 28, 2020), available at the Tenth Circuit and Westlaw.
Lennox v. Miller, 2020 WL 4342247 (2d Cir. July 29, 2020), available at the Second Circuit and Westlaw.
Estate of Valverde v. Dodge, 2020 WL 4362095 (10th Cir. July 30, 2020), available at the Tenth Circuit and Westlaw.
Premature Notices of Appeal and Cumulative Finality
Two courts dealt with potentially premature notices of appeal last week. And both concluded that subsequent events cured any defect in the notices.
In Floyd v. American Honda Motor Co., the Ninth Circuit held that the subsequent entry of a final judgment saved any prematurity in a notice of appeal. The district court in Floyd dismissed the plaintiffs’ claims, but it did not specify whether that dismissal was with or without prejudice. The plaintiffs filed their notice of appeal shortly thereafter. And two weeks later, the district court entered a final judgment.
On appeal, the parties disputed whether the district court’s initial dismissal was a final, appealable decision. But the Ninth Circuit avoided that issue. The district court eventually entered a final judgment. And under Federal Rule of Appellate Procedure 4(a)(2), the subsequent entry of a final judgment cured any prematurity in the notice of appeal. So regardless of whether the dismissal was a final decision—and regardless of whether the notice of appeal was premature—the eventual entry of a final judgment cured any defects.
Similarly, in Zablocki v. Merchants Credit Guide Co, the Seventh Circuit held that the passage of time for amending a complaint cured any prematurity in an appeal from a dismissal without prejudice. The district court in Zablocki dismissed the plaintiff’s complaint without prejudice and with leave to amend within 30 days. Rather than amend, the plaintiffs filed a notice of appeal. The Seventh Circuit noted that its appellate jurisdiction was suspect. But the plaintiffs in Zablocki did not amend within the time to do so. The district court’s decision therefore became final and appealable once that 30-day window had closed. And although the plaintiffs filed their notice of appeal on the last day of that 30-day window, its closure cured any prematurity in their notice.
Floyd v. American Honda Motor Co., 2020 WL 4331769 (9th Cir. July 28, 2020), available at the Ninth Circuit and Westlaw.
Zablocki v. Merchants Credit Guide Co, 2020 WL 4332442 (7th Cir. July 28, 2020), available at the Seventh Circuit and Westlaw.
No Pendent Appellate Jurisdiction Over Venue in an Arbitration Appeal
In Lavigne v. Herbalife, Ltd, the Eleventh Circuit refused to extend pendent appellate jurisdiction to a venue issue alongside an arbitration appeal. The district court had denied the defendants’ request to compel arbitration or transfer those claims to another district court. The denial of arbitration was immediately appealable under 9 U.S.C. § 16. But the court held that it lacked pendent jurisdiction to review the venue issue. Pendent appellate jurisdiction, the court explained, “does not exist when resolution of the non-appealable issue is not necessary to resolve the appealable one.” (Cleaned up.) And the court could resolve the arbitration issue without addressing the venue issue. Indeed, addressing venue would require considering matters completely irrelevant to the arbitration appeal. Pendent appellate jurisdiction was thus improper.
Lavigne v. Herbalife, Ltd, 2020 WL 4342671 (11th Cir. July 29, 2020), available at the Eleventh Circuit and Westlaw.