The Week in Federal Appellate Jurisdiction: August 8–14, 2021

Quick roundup this week. A split Ninth Circuit divided over the scope of a Rule 23(f) appeal. The majority held that it could review whether a defendant waived a personal-jurisdiction objection to class certification. The dissent thought that personal jurisdiction was outside the scope of review.

In other decisions, the Ninth Circuit said that “heirs” is not specific enough to satisfy Federal Rule of Appellate Procedure 3(c)(1)’s party-designation requirement. The Tenth Circuit said that a notice of appeal from a “clearly interlocutory” order did not relate forward to the district court’s final decision. The Fifth Circuit explained the appellate-jurisdiction consequences of electing to bring maritime claims in the district court’s civil jurisdiction. And the Tenth Circuit said that a post-judgment motion did not delay the start of the appeal clock when the motion did not seek any substantive changes to the judgment.

In Supreme Court developments, a new cert petition asks if the Federal Circuit can review a refusal to institute inter partes review under the NHK–Fintiv rule.

• The Ninth Circuit on Rule 23(f) Review of Waiving a Personal-Jurisdiction Objection
• New Cert Petition on Inter Partes Review
• The Ninth Circuit Said That “Heirs” Is Not Specific Enough for a Notice of Appeal’s Party Designation
• The Tenth Circuit Did Not Relate Forward a Premature Notice of Appeal
• The Fifth Circuit on Electing Admiralty Jurisdiction and § 1292(a)(3) Appeals
• The Tenth Circuit on Rule 4(a)(4) and Post-Judgment Motions That Don’t Seek Any Substantive Change

The Ninth Circuit on Rule 23(f) Review of Waiving a Personal-Jurisdiction Objection

In Moser v. Benefytt, Inc., a split Ninth Circuit said that it could review whether a defendant waived a personal-jurisdiction objection to class certification as part of a Rule 23(f) appeal.

Simplifying a bit, Moser involved a purported class action over unwanted sales calls. The defendant did not raise any personal-jurisdiction defense in response to the suit. But when the plaintiff sought class certification, the defendant opposed a nationwide class by arguing that the district court could not exercise personal jurisdiction over out-of-state class members under Bristol-Myers Squibb Co. v. Superior Court of California. The district court concluded, however, that the defendant had waived any personal-jurisdiction argument by not raising the argument in a Rule 12(b) motion or the answer.

The defendant sought immediate review of the class-certification decision via Rule 23(f), which the Ninth Circuit granted. The court of appeals went on to hold that the defendant had not waived the personal-jurisdiction objection to class certification.

But before doing so, the court addressed its appellate jurisdiction. A majority of the panel thought that the waiver issue was within the scope of a Rule 23(f) appeal. The personal-jurisdiction argument went to the scope of the district court’s class-certification order, specifically whether the class should include out-of-state members. The waiver conclusion was also part of the district court’s class-certification order, which the Ninth Circuit had granted permission to appeal. And the defendant had no reason to raise the personal-jurisdiction argument until issues arose concerning inclusion of out-of-state plaintiffs in the suggested class.

Dissenting, Judge Cardone (sitting by designation) contended that the personal-jurisdiction issue was not within the scope of a Rule 23(f) appeal. Those appeals are limited to the propriety of class certification under Rule 23, and personal jurisdiction is not among the criteria for certifying a class. And personal jurisdiction did not go to the scope of the certified class. That’s because personal jurisdiction became an issue only after the district court certified the class. Until that point, out-of-state plaintiffs were not parties to the suit. Class certification was thus antecedent to personal jurisdiction. So the defendant’s “personal jurisdiction challenge could not, by definition, affect the scope of the classes certified.”

Moser v. Benefytt, Inc., 2021 WL 3504041 (9th Cir. Aug. 10, 2021), available at the Ninth Circuit and Westlaw.

New Cert Petition on Inter Partes Review

A new cert petition asks if the Federal Circuit can review a refusal to institute inter partes review under the NHK–Fintiv rule.

Simplifying quite a bit, the NHK–Fintiv rule allows the Patent Trial and Appeals Board to deny inter partes review due to parallel litigation involving the patent in questions. In March, the Federal Circuit held that 35 U.S.C. § 314(d) barred an appeal from the refusal to institute inter partes review under the rule. The cert petition asks (among other things) if § 314(d) “categorically preclude[s] appeal of all decisions not to institute inter partes review.”

The case is Mylan Laboratories LTD v. Janssen Pharmaceutica, N.V. The response is due September 13, 2021.

Petition for a Writ of Certiorari, Mylan Laboratories LTD v. Janssen Pharmaceutica, N.V., No. 21-202 (Aug. 9, 2021), available at the Supreme Court and Westlaw.

The Ninth Circuit Said That “Heirs” Is Not Specific Enough for a Notice of Appeal’s Party Designation

In Al-Qarqani v. Chevron Corp., the Ninth Circuit held that a notice of appeal designating as appellants “the heirs” of an individual did not satisfy Federal Rule of Appellate Procedure 3(c)(1). That rule requires that a notice of appeal designate (among other things) “the party or parties taking the appeal.” The notice of appeal in Al-Qarqani named five individuals and “the heirs” of another. Although Rule 3(c)(1) does not require naming every individual appellant, the designation must be specific enough to give fair notice of who’s appealing. “Heirs,” the Ninth Circuit held, was not specific enough.

Al-Qarqani v. Chevron Corp., 2021 WL 3557596 (9th Cir. Aug. 12, 2021), available at the Ninth Circuit and Westlaw.

The Tenth Circuit Did Not Relate Forward a Premature Notice of Appeal

In Shophar v. Johnson County, the Tenth Circuit refused to review an order imposing filing restrictions because the plaintiff appealed too early.

In a single order, the district court in Shophar dismissed the plaintiffs case and imposed filing restrictions. The plaintiff then appealed and, a few weeks later, filed objections to the filing restrictions. A week after that, the district court overruled those objections.

The plaintiff did not file a new notice of appeal or amend his earlier one. The failure to do so, the Tenth Circuit determined, deprived the court of appeals of jurisdiction to review the filing restrictions. The district court’s filing-restrictions order was not final when entered—it invited objections to the restrictions and thus could be changed. And the premature notice of appeal did not relate forward to the subsequent final order on restrictions, as the initial order was “clearly interlocutory.” Because the plaintiff had not filed a proper notice of appeal from the filing restrictions, the Tenth Circuit lacked jurisdiction to review them.

The court also noted that the interlocutory nature of the filing restrictions did not affect the finality of the dismissal. The restrictions were collateral to the dismissal. So the notice of appeal was timely to appeal that dismissal.

Shophar v. Johnson County, 2021 WL 3502938 (10th Cir. Aug. 10, 2021), available at the Tenth Circuit and Westlaw.

The Fifth Circuit on Electing Admiralty Jurisdiction and § 1292(a)(3) Appeals

In Poincon v. Offshore Marine Contractors, Inc., the Fifth Circuit said that a plaintiffs choice of civil over admiralty jurisdiction prevents the use of 28 U.S.C. § 1292(a)(3) for appellate jurisdiction.

Section 1292(a)(3) gives the courts of appeals jurisdiction over interlocutory orders “determining the rights and liabilities of the parties to admiralty cases.” But some claims can be brought under either a district court’s civil jurisdiction or its admiralty jurisdiction. And if a plaintiff elects to use civil jurisdiction, that plaintiff cannot make use of § 1292(a)(3).

That was the case in Poincon. Although the plaintiff was not explicit in her choice of jurisdiction, her citation to a federal statute (the Jones Act) as the source of federal jurisdiction and her jury demand were enough to signal the choice of civil jurisdiction.

Thankfully, the district court in Poincon also entered a partial judgment under Federal Rule of Civil Procedure 54(b), which allowed the parties to appeal what would otherwise have been an interlocutory decision.

Poincon v. Offshore Marine Contractors, Inc., 2021 WL 3578614 (Aug. 13, 2021), available at the Fifth Circuit and Westlaw.

The Tenth Circuit on Rule 4(a)(4) and Post-Judgment Motions That Don’t Seek Any Substantive Change

In Mahone v. CRST Expedited, Inc., the Tenth Circuit held that a post-judgment motion did not delay the start of the appeal deadline because the motion did not seek any change in the substance of the district court’s decision.

After losing to one defendant at summary judgment and prevailing against two others at trial, the plaintiff in Mahone asked the district court to separately record the judgment against each defendant. This motion was not, the Tenth Circuit concluded, a Rule 59(e) motion, as it did not seek any substantive change in the district court’s judgment. So the motion could not delay the start of the appeal clock under Federal Rule of Appellate Procedure 4(a)(4). The plaintiff thus had 30 days after the judgment in which to appeal. Her appeal after those 30 days had run was late.

Mahone v. CRST Expedited, Inc., 2021 WL 3520601 (10th Cir. Aug. 11, 2021), available at the Tenth Circuit and Westlaw.