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District courts sometimes dismiss a case with leave to refile within a certain amount of time. The courts of appeals have split on when—if ever—these dismissals become final and appealable. Last week, in North American Butterfly Association v. Wolf, the D.C. Circuit weighed in on the issue. In a split decision, the court held that a plaintiff can appeal after the time to amend expires. At that time, the dismissal is sufficiently final for appeal purposes, and no further district court action is required. Dissenting, Judge Millett contended that a dismissal with a set time to amend is not final or appealable until the district court enters a subsequent order dismissing the claims with prejudice. So an appeal before that with-prejudice dismissal is premature.
Last week was relatively uneventful in the world of federal appellate jurisdiction. The Supreme Court granted cert on the scope of remand appeals when an exception to § 1447(d) applies, an issue I’ve been following for a while. Beyond that, there’s not much to report. A divided Tenth Circuit discussed the propriety of hearing a § 1292(b) appeal. The Third Circuit addressed its jurisdiction over a case that touched on patent issues. And the Fifth Circuit discussed applying the collateral-order doctrine in Administrative Procedure Act cases.
Last week, the Fifth Circuit issued a new opinion in Edwards v. 4JLJ, L.L.C. and treated the standard 30-day civil-appeal deadline as jurisdictional. The previous opinion in Edwards—which held that the deadline was not jurisdictional—baffled me a few weeks ago.
In other news, the First Circuit dealt with a judgment that was neither final nor a judgment. The Second Circuit addressed its pendent appellate jurisdiction in an appeal from an injunction. The Third Circuit avoided answering whether the IRS’s presence in an action—which was due to the IRS’s holding a tax lien against one defendant—triggered the 60-day civil appeal deadline. It could do so because the district court had failed to enter a separate Rule 58 judgment, meaning the parties had lots of time to appeal. And in a copyright suit against Macklemore and Ryan Lewis, the Fifth Circuit held that the plaintiff’s lawyer could not appeal a sanction award because his name did not appear on the notice of appeal.
The Federal Rules of Civil Procedure define a “judgment” as any decree or order from which an appeal lies. But just because a district court calls something a “judgment” does not mean that the court has entered a final, appealable decision. (And the rule that anything appealable is a “judgment” is not really followed.) The First Circuit explained as much this week in WM Capital Partners 53, LLC v. Barreras. In a declaratory-judgment action, the district court granted summary judgment for the plaintiff and asked the plaintiff to propose language for a declaration. But before the plaintiff could do so, the district court entered a judgment in favor of the plaintiff. The defendant then appealed. But, the First Circuit explained, there was no appealable judgment—despite a document purporting to be a judgment—because the district court had not declared the parties’ rights.
This sort of thing has to be maddening for litigants. Few lawyers could resist filing a notice of appeal once the district court enters something called a judgment. Failure to do so risks losing your right to appeal. But if the judgment is not actually a judgment, this attempt at appealing can needlessly delay resolution of the action. We need to be thinking of how to better define and identify the point at which the time to appeal begins running.
A few weeks ago, in Edwards v. 4JLJ, L.L.C., the Fifth Circuit held that an appellee could forfeit an objection to the timeliness of a civil appeal. That struck me as odd. Appeal deadlines that come from statutes are jurisdictional. The 30-day deadline for civil appeals comes from a statute: 28 U.S.C. § 2107(a). (Federal Rule of Appellate Procedure 4(a)(1)(A) repeats that deadline.) And parties cannot waive or forfeit jurisdictional deadlines.
So how did the Fifth Circuit hold that the appellee in Edwards forfeited any objection to a late notice? I asked this question a few weeks ago, and I’ve kept coming back to it since.
Now we have an answer. On Monday, the Fifth Circuit withdrew its earlier opinion and replaced it with one dismissing the appeal for lack of jurisdiction. It appears that everyone had overlooked § 2107(a). So although the appellee in Edwards had not adequately raised the timeliness issue, the deadline was jurisdictional, and the court still had to enforce it. Indeed, the court had an independent duty to assure itself of its jurisdiction and thus had to—in its own words—“eat a bit of jurisdictional crow” for overlooking § 2107(a).
Last week saw several qualified-immunity appeals, most of which were dismissed for lack of jurisdiction. Beyond that, the week was relatively uneventful. The Eleventh Circuit heard an appeal from a voluntarily dismissed claim, as the district court had made an interlocutory decision that required the voluntary dismissal. The Seventh Circuit treated bankruptcy’s 14-day appeal deadline as jurisdictional, following that circuit’s caselaw on the issue. And the Third Circuit excused the failure to designate a decision on attorneys’ fees in a notice of appeal.
With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. These defendants cannot argue that the district court erred in concluding that fact disputes were genuine—that is, they cannot dispute the district court’s determination of what a reasonable jury could find. But defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue only that the district court erred in determining what a reasonable jury could find. The appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District court often stay proceedings pending the appeal, which can take months or years. These improper appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation.
I regularly mention these improper appeals as part of my weekly roundup. But last week saw enough examples to warrant its own post. These examples illustrate one of the ways in which the special appellate procedures that accompany qualified immunity make civil-rights litigation so difficult. It’s already hard to win a civil-rights suit due to the substantive defense of qualified immunity. The special appellate rules that come with qualified immunity add unnecessary procedural hurdles to that suit. Should qualified immunity stick around in its current or an altered form, the appeals should become discretionary.
Last week saw what I think is the first opinion on the timeliness of an appeal from a pre-Hall judgment. The Sixth Circuit held that a Rule 50(a) motion for judgment as a matter of law is required to file a renewed motion under Rule 50(b). The Sixth Circuit also addressed its jurisdiction to review the denial of summary judgment on a probable-cause issue after the case had gone to trial. Plus the Second Circuit heard an immediate appeal involving an attorney’s lien.
In Hanover American Insurance Co. v. Tattooed Millionaire Entertainment, LLC, the Sixth Circuit held that failure to file a pre-verdict Rule 50(a) motion for judgment as a matter of law forfeits the right to renew that motion via Rule 50(b). At the close of evidence, the plaintiff in Hanover Insurance moved for judgment as a matter of law on claims involving only two of the three defendants. The third defendant prevailed at trial. The plaintiff then sought—and obtained—judgment as a matter of law on the claims involving that third defendant.
The Sixth Circuit reversed. It initially held that the district court’s decision was final and appealable despite an outstanding issue of costs. The court went on to hold that there could be no Rule 50(b) motion without a Rule 50(a) motion. So failure to file a Rule 50(a) motion on the claims involving the prevailing defendant forfeited any right to file a Rule 50(b) motion. Further, the district court’s ambiguous statements on the need to file a Rule 50(a) motion did not excuse the plaintiff’s failure to file. Nor did those statements permit treating the plaintiff as if it had actually moved under Rule 50(a).
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