Applying Dupree to Part of a Summary-Judgment Denial
In Cottonwood Environmental Law Center v. Edwards, the Ninth Circuit applied the Supreme Court’s decision in Dupree v. Younger to permit review of part of a summary-judgment denial. In the course of doing so, the court rejected the argument that the denied summary-judgment motion needed to have been potentially dispositive as to the need for a trial.
The Summary-Judgment Denial in Cottonwood Environmental
Simplifying a fair bit, Cottonwood Environmental involved two theories of recovery under the Clean Water Act: a direct-discharge theory, and an indirect-discharge theory. The district court rejected the direct-discharge theory at summary judgment, concluding that the theory “failed as a matter of law as applied to the undisputed facts.” But the plaintiff could proceed to trial on its indirect-discharge theory. After the plaintiff lost at trial, it appealed the district court’s rejection of the direct-discharge theory.
Preserving Purely Legal Issues via Summary-Judgment Denials
The Ninth Circuit determined that it had jurisdiction over that issue. The denial of summary judgment normally does not preserve an issue for appeal after a trial on the merits. Preservation instead comes via motions under Federal Rule of Civil Procedure 50. But the Supreme Court held in Dupree that a denied summary-judgment motion can preserve purely legal issues. And the district court’s rejection of the direct-discharge theory involved a purely legal issue: the district court held that the theory failed without any reference to disputed facts.
Preserving Some Issues
The Ninth Circuit added that the denied summary-judgment decision need not have been potentially dispositive. “[S]electively quote[ing] dicta” from a pre-Dupree decision, the appellee had argued that summary-judgment denials are not appealable unless the decision—had it gone the other way—would “have completely obviated the need for a trial.”
The Ninth Circuit said that Dupree foreclosed this “all-or-nothing approach to appellate review of summary judgment denials”:
Dupree makes clear that a reviewing court may review some issues contained in a summary judgment denial, and not others.
So the Ninth Circuit could review the portion of the summary-judgment denial that rejected the direct-discharge theory.
Cottonwood Environmental Law Center v. Edwards, 2023 WL 8043823 (9th Cir. Nov. 21, 2023), available at the Ninth Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
In United States v. Cabrera-Rivas, the Fourth Circuit held that failure to object to a magistrate judge’s decision does not affect appellate jurisdiction. The failure instead implicates preservation. In so holding, the Fourth Circuit agreed with the Sixth Circuit but split with the Fifth and Eleventh Circuits.
Continue reading....
In McGruder v. Metropolitan Government of Nashville & Davidson County, the Sixth Circuit said that it would address a judicial-estoppel defense raised for the first time after the defendant had filed its notice of appeal. The Sixth Circuit framed this issue as one implicating the content and timing requirements for a notice of appeal. The […]
Continue reading....
I’ve been following the circuit split over preserving purely legal issues via denied summary-judgment motions for some time. Now, the Supreme Court has finally resolved it. In Dupree v. Younger, the Court held that a denied summary-judgment motion preserves a purely legal issue. Litigants thus do not need to re-raise those issues in post-trial motions […]
Continue reading....
The Supreme Court held in Ortiz v. Jordan that parties cannot appeal evidence-sufficiency issues raised in a denied summary-judgment motion after a trial on the merits. Parties must instead raise issues with the sufficiency of the trial evidence via a motion under Federal Rule of Civil Procedure 50. But Ortiz left open the possibility that […]
Continue reading....
The Supreme Court held in Ortiz v. Jordan that parties cannot appeal evidence-sufficiency issues raised in a denied summary-judgment motion after a trial on the merits. Parties must instead raise issues with the sufficiency of the trial evidence via a motion under Federal Rule of Civil Procedure 50. But Ortiz left open the possibility that […]
Continue reading....Recent Posts
This month’s roundup features two decisions on litigants’ attempts to voluntarily dismiss some of their claims. In one, a defendant filed a written, pretrial notice that it abandoned one of its counterclaims. In another, the parties stipulated to a dismissal, but one defendant did not sign the stipulation. In both cases, the court deemed the […]
Continue reading....
In Gessele v. Jack in the Box Inc., the Ninth Circuit held that when a district court alters its judgment by granting a post-judgment motion, the time to appeal runs from the entry of an amended judgment. Unlike orders denying post-judgment motions, the appeal clock does not start with the order itself.
Continue reading....
In Simmons v. USI Insurance LLC, the Eleventh Circuit held that the purported abandonment of a counterclaim before trial was ineffective and thus precluded appellate jurisdiction. The counterclaim was the only theory of relief that had not been resolved at summary judgment or trial. And in a written notice before trial, the defendant had said […]
Continue reading....
September’s biggest development in federal appellate jurisdiction concerned appeals from denials of anti-SLAPP motions under California law. The Ninth Circuit overruled its longstanding rule that defendants can immediately appeal from these denials via the collateral-order doctrine. But only a week later, the Federal Circuit followed that now-overruled caselaw and heard an anti-SLAPP appeal. It will […]
Continue reading....
Last month saw the Ninth Circuit apply its rule that a minute order can count as a separate document for purposes of starting the appeal clock. The Sixth Circuit explained when it cannot review contract-formation issues in an arbitration appeal. And the Fourth Circuit declined to exercise pendent appellate jurisdiction over standing and ripeness issues […]
Continue reading....