The Fourth Circuit held that duty-to-defend decisions are not appealable injunctions when the underlying litigation is over.
July 15, 2023
In Selective Insurance Company of America v. Westfield Insurance Company, the Fourth Circuit dismissed an interlocutory appeal from a duty-to-defend decision. The court assumed—as other courts have held—that duty-to-defend orders can be appealable injunctions under 28 U.S.C. § 1292(a)(1). But the underlying litigation in Selective Insurance (that is, the litigation in which the insured was seeking a defense) was resolved while the duty-to-defend appeal was pending. Because that underlying litigation was over, the duty-to-defend order no longer imposed any prospective obligations on the insurance company. The Fourth Circuit thus concluded that the duty-to-defend order “lack[ed] the character of an injunction” and thus could not be immediately appealed via § 1292(a)(1).
Another court of appeals has relied on abrogated caselaw rather than the recently amended Rule 3(c) to limit the scope of an appeal.
May 24, 2023
For years, several courts of appeals limited the scope of an appeal to the orders designated in a notice of appeal. Recent amendments to Federal Rule of Appellate Procedure 3(c) were supposed to end that practice. These amendments took effect in December 2021. Yet some courts have overlooked these changes, continuing to apply caselaw that the amendments abrogated.
Yesterday’s Eleventh Circuit decision in Vera v. Market Wood LLC is yet another example. The court relied on a pre-amendments case to hold that the failure to designate a particular order meant the court lacked jurisdiction to review that order.
The Ninth Circuit held that the limits on government appeals in criminal cases warranted an immediate appeal from an order disqualifying an entire U.S. Attorney’s Office.
May 24, 2023
Orders on the disqualification of counsel are not normally appealable. In most cases, an appeal from a final judgment suffices to protect the relevant interests. But what about when a district court disqualifies an entire U.S. Attorney’s Office from participating in a prosecution? Several courts have held that such a disqualification is immediately appealable via the collateral-order doctrine. Last week, in United States v. Williams, the Ninth Circuit agreed.
The Fifth Circuit continues to let government officials appeal from discovery orders. Hopefully one of these cases will go en banc.
May 22, 2023
A few years ago, I wrote about the Fifth Circuit’s caselaw that allows government officials to immediately appeal discovery orders via the collateral-order doctrine. The case that sparked that discussion did not address appellate jurisdiction at all—I had to go to the briefs to figure out why the court was hearing a discovery appeal. But two recent Fifth Circuit cases addressed the issue squarely, one in some depth. And the cases reinforce my view that the Fifth Circuit needs to go en banc to change this rule.
The Fourth Circuit explained why pendent appellate jurisdiction does not extend to standing issues in an appeal from the denial of sovereign immunity.
May 18, 2023
In Industrial Services Group, Inc. v. Dobson, the Fourth Circuit gave a convincing explanation for why pendent appellate jurisdiction does not extend to standing in a sovereign-immunity appeal. The courts of appeals have split on this specific issue, and the caselaw is mixed on whether standing is part of other interlocutory appeals. But the Fourth Circuit is on the better side of the issue. Although standing is a threshold issue to proceeding in federal court, it normally does not need to be addressed to resolve other, immediately appealable issues.
The Eleventh Circuit held that a Rule 59 motion doesn’t shorten the appeal clock when the district court doesn’t set out the judgment in a separate document.
May 17, 2023
In Makozy, v. Westcor Land Title, the Eleventh Circuit tackled a particularly complicated issue of appellate timing that involved the interaction between Federal Rule of Appellate Procedure 4(a)(4) and Rule 4(a)(7). Simplifying as much as possible (which isn’t much), the case asked if a post-judgment motion could shorten the 150 day period for entry of a judgment when the district court doesn’t set out the judgment in a separate document. The court answered “no,” joining the Ninth and Tenth Circuits.
It’s a solid decision. My only gripe is that it’s unpublished and thus not precedential.
The Eleventh Circuit held that plaintiffs can voluntarily dismiss only entire actions, regardless of whether they use Rule 41(a)(1) or (2).
May 16, 2023
Earlier this year, the Eleventh Circuit reiterated its rule that litigants cannot voluntarily dismiss individual claims under Federal Rule of Civil Procedure 41(a)(1). That portion of the rule permits plaintiffs to voluntarily dismiss “an action without a court order.” So plaintiffs can dismiss only entire actions under Rule 41(a)(1), and attempts to dismiss individual claims are ineffective.
Last week, in Rosell v. VMSB, LLC, the Eleventh Circuit added that litigants cannot voluntarily dismiss individual claims Rule 41(a)(2). That part of Rule 41 permits voluntary dismissals via court order. But, according to the Eleventh Circuit, it also permits the dismissal only of entire actions. So when the litigants in Rosell settled the only unresolved claim, they needed to either obtain a partial judgment under Federal Rule of Civil Procedure 54(b) or amend the complaint to remove the settled claim. Otherwise, there would be no final decision and no opportunity to appeal.
As I said earlier this year, I have my doubts about the “actions-only” interpretation of Rule 41. Rosell only reinforces those doubts.
After an interlocutory order that appears to have precluded the plaintiff from prevailing, the plaintiff asked the district court to enter summary judgment against it. The Sixth Circuit held that this didn’t produce a final decision.
April 12, 2023
In Ohio Public Employees Retirement System v. Federal Home Loan Mortgage Corp., the Sixth Circuit held that an invited summary-judgment decision was not final because the plaintiff was trying to circumvent Rule 23(f). The district court had denied class certification. The plaintiff then tried to manufacture a final, appealable decision by asking the district court to enter judgment against it. As the Sixth Circuit saw things, the case was no different from Microsoft Corp. v. Baker.
But there appears to be an important distinction in the underlying order that the Sixth Circuit overlooked. In Microsoft, the district court had merely denied class certification, and the named plaintiffs were free to pursue their individual claims. But in Ohio Public Employees, it looks as though the district court’s class-certification decision effectively precluded the plaintiff from prevailing on even its individual claims. If that’s the case, Ohio Public Employees extends Microsoft to a different variety of manufactured finality. In doing so, it shuts down a valuable and long-recognized tool for accelerating the inevitable end of district court proceedings.
The Second Circuit tackled a series of issues concerning remand appeals, including whether § 1447(d)’s bar on appeals applies to § 1447(e) remands and whether an appellate court can inquire into the true grounds for a remand.
March 24, 2023
In LeChase Construction Services, LLC v. Argonaut Insurance Co., the Second Circuit held that 28 U.S.C. § 1447(d)’s bar on remand appeals applied to remands under § 1447(e). But the court also held that it could review a remand that, while purportedly under § 1447(e), was actually based on “a patently nonjurisdictional ground, such as prudential considerations.” (Cleaned up.) So the Second Circuit reviewed a remand that—though nominally done under § 1447(e)—was really an exercise of Colorado River abstention.
The D.C. Circuit held that someone challenging a discovery order directed to someone else must first obtain some sort of party status before appealing.
March 18, 2023
In Broidy Capital Management LLC v. Muzin, the D.C. Circuit dismissed a non-party’s appeal that challenged a discovery order directed to a party. The court explained that only those with some sort of party status—whether an original party, an intervenor, or some other type of “party” for purposes of appeal—may appeal. Because the would-be appellant in Broidy Capital had never obtained party status, it could not appeal to challenge any of the district court’s orders. The D.C. Circuit remanded the case to give the non-party the opportunity to obtain the necessary status.