The jurisdictional consequences of voluntary dismissals, appeals from interlocutory writs of execution, and appeals from un-specified nominal-damages awards.
August 16, 2022
The most interesting decision from last week (to me, at least) addressed whether a voluntary dismissal after an adverse interlocutory order affected jurisdiction. There was also a Second Circuit decision on the appealability of interlocutory writs of execution (though the court determined that the order was “final,” so “interlocutory” might not be an accurate description). And the Eighth Circuit dismissed an appeal from a liability decision that did not set the amount of nominal damages.
- The Seventh Circuit on Voluntary Dismissals & Jurisdiction, Appellate and Article III
- The Second Circuit Heard an Appeal From an Interlocutory Writ of Execution
- The Eighth Circuit Dismissed an Appeal From an Un-Quantified Amount of Nominal Damages
The Seventh Circuit on Voluntary Dismissals & Jurisdiction, Appellate and Article III
Litigants sometimes try to create a final, appealable decision by voluntarily dismissing some or all of their claims. These dismissals fall under the banner of manufactured finality, and they come in several forms. A litigant who loses on some claims might voluntarily dismiss its remaining claims and then appeal the loss. A litigant who faces an adverse interlocutory decision—one that makes a claim less attractive but does not actually decide it—might voluntarily dismiss its claims and try to appeal the interlocutory order. Or a litigant who faces a dispositive interlocutory order—one that effectively, though not technically, resolves all of the claims—might do the same.
When litigants try to manufacture a final decision, most courts of appeals see potential appellate-jurisdiction issues. But in Wednesday’s Levy v. West Coast Life Insurance Co., the Seventh Circuit said that voluntary dismissals do not implicate statutory appellate jurisdiction. They instead implicate Article III. The court ultimately held that it could review the dismissal of the plaintiffs’ claim, despite the plaintiffs’ having voluntarily dismissed that claim after the district court rejected their theories of liability. But in the course of doing so, the Seventh Circuit said that an appellant who consents to a judgment against it might not suffer the injury in fact that Article III requires.
The outcome in Levy was right—the plaintiffs had suffered a dispositive interlocutory order, and their voluntary dismissal merely accelerated the inevitable end of district court proceedings. And the Seventh Circuit was correct that voluntary dismissals should not raise appellate-jurisdiction issues. But most courts—including perhaps the Supreme Court—disagree on that point. And I don’t see how voluntary dismissals implicate Article III. The issue is instead one of waiver: a litigant who voluntarily dismisses its claims might waive any right to appellate review.
For more on Levy and the issues that voluntary dismissals might raise, see my post The Seventh Circuit on Voluntary Dismissals & Jurisdiction, Both Appellate and Article III
Levy v. West Coast Life Insurance Company, 2022 WL 3221836 (7th Cir. Aug. 10, 2022), available at the Seventh Circuit and Westlaw
The Second Circuit Heard an Appeal From an Interlocutory Writ of Execution
In Levinson v. Kuwait Finance House (Malaysia) Berhad, the Second Circuit heard an appeal from a writ of execution, despite the district court’s having ordered further proceedings on the writ’s propriety.
The case involved efforts to enforce a judgment against Iran. At the plaintiffs’ request, the district court granted a writ of execution against a foreign bank’s assets. When the bank moved to vacate the writ, the district court denied the motion as premature. As the district court saw things, there were fact disputes as to whether the bank was an agency or instrumentality of Iran (which might allow the plaintiffs to enforce their judgment against the bank). The district court accordingly ordered the parties to confer on discovery. The bank then appealed.
The Second Circuit held that it had jurisdiction. The court noted that a writ of execution normally comes at the end of a lawsuit. Here, the lawsuit started with one. And some courts have held that defendants can immediately appeal from writs of execution. Following those cases, the Second Circuit held that it had jurisdiction despite the further proceedings that the district court envisioned.
Levinson v. Kuwait Finance House (Malaysia) Berhad, 2022 WL 3269083 (2d Cir. July 21, 2022), available at CourtListener and Westlaw
The Eighth Circuit Dismissed an Appeal From an Un-Quantified Amount of Nominal Damages
In Perficient, Inc. v. Munley, the Eighth Circuit dismissed an appeal because the district court had not yet set the amount of a nominal-damages award.
The district court granted the plaintiff’s motion for summary judgment on liability and held that the plaintiff was entitled to nominal damages. But the district court did not set the amount of nominal damages. It instead planned to do so when it later decided an award of attorneys fees. Before the district court could determine the damages award, the defendant appealed
The Eighth Circuit dismissed the appeal for lack of a final decision. As a general rule, a ruling on liability that does not also set the amount of damages is not final. An exception exists when determining the amount of damages would be a “technical” or “ministerial” matter. In those situations, the amount of damages is straightforward and will not produce another appeal.
That would seem to be the case in Perficient, as the district court awarded only nominal damages. But the Eighth Circuit noted that there is no standard amount of nominal damages under Missouri law (which governed the award of damages). So determining the nominal-damages award was not ministerial or technical.
The Eighth Circuit added that the premature notice of appeal could not relate forward under Federal Rule of Appellate Procedure 4(a)(2). The court said that relation forward applied only when a party appeals after an order that would have been appealable if immediately followed by the entry of judgment. And a ruling on liability would not be immediately appealable if followed by a judgment.
Perficient, Inc. v. Munley, 2022 WL 3206305 (8th Cir. Aug. 9, 2022), available at the Eighth Circuit and Westlaw