The en banc Fifth Circuit can disarm its finality trap, which occasionally precludes appeals when plaintiffs voluntarily dismiss some of their claims.
January 28, 2020
Last week, the en banc Fifth Circuit heard argument in Williams v. Taylor Seidenbach, Inc. The case gives that court the opportunity to clean up the “finality trap” it has created for litigants. The Fifth Circuit has held that parties may not appeal when they’ve voluntarily dismissed some of their claims without prejudice; the voluntary dismissal precludes the district court’s decision from being final. But those same parties also cannot return to the district court to change the dismissal to one with prejudice, as district court proceedings are finished. Cases that fall into this finality trap exist in a sort of litigation limbo. I’ve accordingly called them “zombie actions”: they are final and unalterable in the district court, but they are not final—and will never become final—for appeal.
The Fifth Circuit has several options for fixing its finality trap. In this post, I discuss those options, as well as the finality trap’s origins, its application in Williams, the en banc argument, and the larger problems in this area of appellate jurisdiction.
The court heard argument on its “finality trap”—the rule that precludes appeals when plaintiffs voluntarily dismiss some claims without prejudice.
January 23, 2020
Update: For my full post on the argument in Williams, see The Fifth Circuit & the Finality Trap.
The en banc Fifth Circuit heard argument this morning in Williams v. Taylor Seidenbach, Inc. The case addresses the finality and appealability of an action when some claims have been decided on the merits but others have been voluntarily dismissed without prejudice.
An appeal was improperly manufactured by dismissing claims without prejudice, and the district court failed to explain its Rule 54(b) certification.
January 22, 2020
The courts of appeals occasionally struggle with appellate jurisdiction when parties dismiss some of their claims without prejudice. The issue comes up when a district court has resolved some of the claims in a multi-claim suit and parties try to transform that non-final decision into a final one by dismissing their remaining claims without prejudice. Courts hold that parties cannot manufacture an appeal this way. Parties instead must obtain a Rule 54(b) certification, which allows district courts to certify for immediate appeal a decision resolving some (but not all) claims in a multi-claim suit.
The Sixth Circuit yesterday rejected one of these manufactured appeals. In Novia Communications, LLC v. Weatherby, the plaintiff had tried to take a belt-and-suspenders approach to appellate jurisdiction, voluntarily dismissing its unresolved claims and securing a Rule 54(b) certification. But the Sixth Circuit held that neither action gave the court jurisdiction. The voluntary dismissal of three unresolved claims did not make the resolution of other claims final and appealable. And the Rule 54(b) certification was improper because it did not explain why an immediate appeal was warranted. Also of interest, the court went on to suggest that a Rule 54(b) certification might not be proper in any event due to the relationship between the resolved and unresolved claims.
The court held that Rule 60 relief is appropriate for some plaintiffs who voluntarily dismissed their claims to secure an appeal. But not for all of them.
January 21, 2020
In 2017’s Microsoft Corp. v. Baker, the Supreme Court held that plaintiffs seeking to bring a class action could not voluntarily dismiss their individual claims and immediately appeal the denial of class certification. In doing so, the Supreme Court abrogated a line of Ninth Circuit decisions that allowed this voluntary-dismissal tactic.
The question then arose of what to do with plaintiffs who had voluntarily dismissed their claims before Baker and in reliance on the Ninth Circuit’s pre-Baker caselaw. In November, the Ninth Circuit held in Henson v. Fidelity National Financial, Inc. that these plaintiffs could obtain relief from their dismissals via Rule 60(b)(6). But in last week’s Strafford v. Eli Lilly & Co., the Ninth Circuit affirmed the denial of Rule 60(b)(6) relief for another group of plaintiffs who had relied on that same caselaw; those plaintiff’s circumstances, the court held, did not warrant relief.
So it appears that not all pre-Baker dismissals can be undone.
The Eleventh Circuit applied its “anomalous rule” for intervention appeals, which makes jurisdiction turn on the merits of intervention. That’s sort of silly, and there’s a simpler option.
January 19, 2020
In United States v. 60 Automotive Grilles, the Eleventh Circuit held that it lacked jurisdiction to immediately review a decision denying intervention as of right. That was because the district court correctly denied intervention. Practically speaking, the court reviewed and affirmed the district court’s decision. But under the “anomalous rule” that the Eleventh Circuit and other courts apply, appellate jurisdiction in intervention appeals turns on whether the district court correctly denied intervention.
This anomalous rule is one of a few different rules that the circuits use to govern intervention appeals. All of these rules reach the same practical outcome: would-be intervenors can obtain immediate appellate review of decisions denying intervention. The rules differ only in how courts describe the review. And the differences are unnecessary and potentially confusing. It might be far simpler to say that all denials of intervention (or at least all denials of intervention as of right) are immediately appealable, regardless of whether the district court was correct.
The court deemed clearly erroneous an order requiring the defendant to disclose its customers so that class counsel could find a named plaintiff.
January 14, 2020
In In re Williams-Sonoma, Inc., a district court had ordered a defendant to produce a list of its customers so opposing counsel could identify a lead plaintiff to pursue a class action. A split panel of the Ninth Circuit concluded that this discovery order was clearly erroneous and warranted reversal via mandamus.
The en banc Fifth Circuit held that orders denying appointed counsel in § 1983 suits are not immediately appealable via the collateral-order doctrine
January 9, 2020
In Williams v. Catoe, the en banc Fifth Circuit held that orders denying appointed counsel in § 1983 suits are not immediately appealable via the collateral-order doctrine. The court concluded that these orders were effectively reviewable in an appeal from a final judgment. In doing so, the Fifth Circuit overruled its decision in Robbins v. Maggio and joined nearly every other circuit to address this matter. It appears that only the Eighth Circuit remains in treating orders denying appointed counsel as immediately appealable.
The Ninth Circuit held that Rule 60(b)(6) could undo voluntary dismissals that were sought to obtain review of class-certification denials.
November 18, 2019
In last week’s Henson v. Fidelity National Financial, Inc., the Ninth Circuit held that plaintiffs could use Rule 60(b)(6) to undo voluntary dismissals they had entered to facilitate appellate review. Before the Supreme Court’s decision in Microsoft Corp. v. Baker, the Ninth Circuit allowed plaintiffs had to use these dismissals to secure review of orders denying class certification. Baker closed that door to appeal. But Henson—which was pending on appeal when Baker was decided—held that plaintiffs who had relied on pre-Baker caselaw in voluntarily dismissing their claims could obtain relief from the judgment via Rule 60(b).
In Vergara v. City of Chicago, the Seventh Circuit tackled a delayed district court opinion, an untimely notice of appeal, and a late objection to that notice.
October 2, 2019
In Vergara v. City of Chicago, the Seventh Circuit untangled a procedural mess involving multiple missed deadlines. The notice of appeal was late (though understandably so), as was the objection to the late notice. But none of these missed deadlines went to the court’s jurisdiction. They were claims-processing rules—one mandatory but not properly invoked, the other not mandatory and forfeited.
All of this could have been avoided had the district court not waited almost two years after dismissing the action to issue its opinion. Like last year’s Walker v. Weatherspoon, Vergara illustrates the potential for mistakes when district courts decide a case but don’t issue an opinion until after the time for appealing has run. It also illustrates the need to better define the point in litigation when parties have a right—and a limited window of time—to take the traditional, end-of-proceedings appeal.
The Fourth Circuit helpfully explained when consented judgments are—and are not—appealable.
September 13, 2019
In Sprint Nextel Corp. v. Wireless Buybacks Holdings, LLC, the Fourth Circuit addressed one of Sprint’s suits against cell-phone arbitrageurs. But before reaching the merits, the court had to assure itself of its jurisdiction. After the district court had granted partial summary judgment to Sprint on liability, the parties stipulated to the amount of damages and the defendant appealed. But consented judgments like this can create problems with appellate jurisdiction. And Wireless Buybacks provides a helpful explanation of the issue.