Lots of appeals from dismissals without prejudice, several courts using notices of appeal to limit the scope of review, and more.
January 27, 2020
Last week was mostly about appeals and dismissals without prejudice. There were also a handful of cases limiting the scope of review due to the contents of a notice of appeal. Plus an appeal from a not-yet-determined attorneys’ fees award and a cert denial on the scope of qualified-immunity appeals.
- The en banc Fifth Circuit heard argument in its zombie action
- The Sixth Circuit rejected a manufactured appeal and a Rule 54(b) certification
- The Fourth Circuit held that it could review a Rule 12(b)(7) dismissal, despite the lack of prejudice
- The Sixth Circuit rejected an attorney’s sanction appeal because the attorney was not named in the notice of appeal
- Two other decisions applied the order-designation requirement to limit the scope of an appeal
- The Eleventh Circuit dismissed an attorneys’ fees appeal because the district court had not yet set the amount of fees
- Cert was denied in Graf v. Koh
The en banc Fifth Circuit heard argument in its zombie action
The en banc Fifth Circuit heard argument in Williams v. Taylor Seidenbach, Inc. The case involves the “finality trap”—the finality and appealability of an action when some claims have been decided on the merits but others have been voluntarily dismissed without prejudice.
You can read my prior coverage of Williams here: The Fifth Circuit Creates a Zombie Action. And I’ll have a post about the en banc argument—including the options the court seems to be considering—later this week.
Update: For my full post on the argument in Williams, see The Fifth Circuit & the Finality Trap.
Oral Argument Recording, Williams v. Taylor Seidenbach, Inc., No. 18-31159 (consolidated with 18-31161).
The Sixth Circuit rejected a manufactured appeal and a Rule 54(b) certification
Speaking of dismissals without prejudice, in Novia Communications, LLC v. Weatherby, the Sixth Circuit dismissed a belt-and-suspenders approach at an interlocutory appeal. The plaintiff in Novia Communications had voluntarily dismissed its unresolved claims and secured a Rule 54(b) certification. But the Sixth Circuit held that neither action gave the court appellate jurisdiction. The voluntary dismissal of three unresolved claims without prejudice 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.
Full coverage here: The Sixth Circuit on Manufactured Appeals and Rule 54(b).
Novia Communications, LLC v. Weatherby, 2020 WL 289199 (6th Cir. Jan. 21, 2020), available at the Sixth Circuit and Westlaw.
The Fourth Circuit held that it could review a Rule 12(b)(7) dismissal, despite the lack of prejudice
There was also an appeal from a claim dismissed without prejudice, though this one was involuntary. In Gunvor SA v. Kayablian, the Fourth Circuit held that it had jurisdiction to review a dismissal for failure to join a required party, even though that dismissal was without prejudice.
Simplifying a fair bit, Gunvor involved state law claims arising out of a failed fuel-oil enterprise. But the plaintiff had failed to sue an entity that, if joined, would deprive the district court of diversity jurisdiction. For reasons not relevant to the present discussion, the district court held that this third party should have been joined in the action but could not be joined. The district court accordingly dismissed the complaint for failure to join a party under Federal Rule of Civil Procedure 19. And it dismissed the complaint without prejudice.
The Fourth Circuit held that it had jurisdiction despite the dismissal without prejudice. In cases like Williams and Novia Communications, courts often say that dismissals without prejudice are not final or appealable; the plaintiff could refile the dismissed claim elsewhere, so the litigation is not yet over. But that rule should apply only so far as its underlying rationale dictates. Lots of dismissals without prejudice should be immediately appealable. And Gunvor provides a good example. The plaintiff could not fix its complaint—that is, add the necessary party—without depriving the district court of diversity jurisdiction. So litigation in the federal court was over. The appeal was accordingly proper.
Gunvor SA v. Kayablian, 2020 WL 355519 (4th Cir. Jan. 22, 2020), available at the Fourth Circuit and Westlaw.
The Sixth Circuit rejected an attorney’s sanction appeal because the attorney was not named in the notice of appeal
In Harness v. Taft, the Sixth Circuit dismissed an an attorney’s appeal for lack of jurisdiction because the attorney was not named in the notice of appeal.
As relevant to the present discussion, the district court in Harness dismissed the plaintiffs’ suit and suspended the plaintiffs’ attorney from practicing in the Eastern District of Kentucky for two years. The attorney had been suspended from practice in Ohio and had apparently filed the Harness suit while suspended (though he argued that the suspension had been lifted by the time he filed the suit). The plaintiffs and the attorney both appealed.
The Sixth Circuit affirmed the dismissal of the plaintiffs’ suit. And it dismissed the attorney’s appeal. Under Federal Rule of Appellate Procedure 3(c)(1), a notice of appeal must name the appealing parties and the judgment or order being appealed. The notice of appeal in Harness named only the plaintiffs as the appealing parties. The notice also designated a district court order that dealt only with the dismissal of the plaintiffs’ claims. As the Sixth Circuit saw it, nothing in the notice indicated that the attorney intended to appeal the sanction order. The court accordingly held that it lacked jurisdiction to review the sanction order and dismissed the attorney’s appeal. It noted, however, that the dismissal was without prejudice to any relief the attorney might seek from the district court.
This dismissal was a bit harsh. Can the defendants or the Sixth Circuit genuinely claim that they were surprised—much less harmed—by the notice of appeal’s failure to name the attorney or the sanction order? Surely they must have suspected that the attorney was appealing that order. And any uncertainty must have been dispelled once the opening brief was filed. If at that point anyone was truly surprised by the attorney’s appeal, an extension of the briefing schedule would cure any harm. Granted, the filing of a notice of appeal is of jurisdictional significance. It moves a case from the district court to the court of appeals. But to deprive litigants (and lawyers) of their right to appeal due to these minor errors seems a bit too harsh.
Harness v. Taft, 2020 WL 398528 (6th Cir. Jan. 23, 2020), available at the Sixth Circuit and Westlaw.
Two other decisions applied the order-designation requirement to limit the scope of an appeal
Speaking of notices of appeal, two other courts of appeals needlessly limited the scope of their review due to the contents of a notice of appeal. Again, Federal Rule of Appellate Procedure 3(c)(1) requires that appellants “designate designate the judgment, order, or part thereof being appealed” in their notice of appeal. As hinted at in the Harness discussion, some courts of appeals have read this designation requirement to specify the scope of an appeal: appellate jurisdiction exits over only the specified orders, not any others.
In United States v. Slaugher, a pro se criminal defendant apparently sought to appeal the district court’s refusal to reduce his sentence under Federal Rule of Criminal Procedure 35(a). On appeal, the defendant argued different sentencing and conviction arguments than those made in his Rule 35(a) motion. But his notice of appeal had designated only the district court’s denial of that motion. Invoking Rule 3(c)(1), the Eleventh Circuit held that the failure to designate any other district court orders in the notice precluded the court from reviewing them.
And in In re Gould, a pro se litigant sought to appeal several district court orders that denied a variety of relief. But the litigant’s notice of appeal designated only one of those orders: the denial of his motion to file post-judgment motions. The Second Circuit held that this designation precluded it from reviewing any other district court decisions, including the underlying judgment.
In both Slaughter and Gould, litigants were deprived of their right to appeal due to appellate court’s misreading of the order-designation requirement. The order-designation requirement exists to help identify the decision that creates appellate jurisdiction and from which the time for appealing is calculated. It’s not supposed to set the scope of an appeal. And, again, I doubt appellees or courts are often surprised (much less harmed) when appellants’ briefs challenge orders that were not mentioned in the notice of appeal.
Proposed amendments to Rule 3(c) will fix this misreading of the rule. And they can’t come soon enough.
United States v. Slaugher, 2020 WL 376495 (11th Cir. Jan. 23, 2020), available at the Eleventh Circuit and Westlaw.
In re Gould, 2020 WL 376248 (2d Cir. Jan. 23, 2020), available at the Second Circuit and Westlaw.
The Eleventh Circuit dismissed an attorneys’ fees appeal because the district court had not yet set the amount of fees
In Sabal Trail Transmission, LLC v. 3.921 Acres of Land, the Eleventh Circuit held that it lacked jurisdiction to review an order awarding attorneys’ fees because the amount of fees was not yet resolved.
Sabal Trail was a condemnation action against a landowner in which a natural gas company sought to acquire an easement to build a pipeline. A jury awarded the landowners over $300,000, and the district court ordered that the company would also have to pay the landowners’ fees and costs. The district court did not, however, set the amount of those fees and costs. Before it could, the gas company appealed. On the merits, the company argued that a witness had given inadmissible testimony about the land’s value. And on the fees, the company argued that the Natural Gas Act—which allowed the company to acquire the land via eminent domain—did not allow for attorneys’ fees.
The Eleventh Circuit affirmed the judgment on the merits. It then dismissed the appeal insofar as the gas company challenged the fee order. An award of attorneys’ fees is not final or appealable until the amount of fees is set. This is similar to a district court decision finding the defendant liable but leaving for later the amount of damages; the decision is not final until that amount is set.
Note, the unresolved attorneys’ fees issue did not preclude the appeal from the merits decision. Under Budinich v. Becton Dickinson & Co., a decision on the merits of a claim is final even though an outstanding issue of attorneys’ fees remains. Budinich reasoned that a final decision is one that resolves the merits of a case, and an issue that will not affect the decision on the merits—such as a request for attorneys’ fees—does not affect the finality of that decision.
In its argument for appellate jurisdiction, the gas company misread Budinich. It argued that Budinich actually required that a party appeal an award of attorneys’ fees—regardless of whether the amount was settled—alongside its appeal from the merits. But that’s not right. Budinich held that the merits decision and the attorneys’ fees decision are separate for purposes of appeal. If they are decided at separate times, a party might have to appeal them separately.
The Eleventh Circuit also held that it could not exercise pendent appellate jurisdiction over the attorneys’ fees decision. The court said that pendent jurisdiction was proper only when some overlap existed in the appealable and non-appealable decisions. Here there was no overlap; the gas company’s challenge to the jury verdict was completely separate from the issues concerning attorneys’ fees.
Sabal Trail Transmission, LLC v. 3.921 Acres of Land, 2020 WL 355874 (11th Cir. Jan. 22, 2020), available at the Eleventh Circuit and Westlaw.
Cert was denied in Graf v. Koh
Finally, the Supreme Court denied cert in Graf v. Koh. The case asked if the scope of an interlocutory qualified-immunity appeal includes review of the inferences a district court draws from otherwise-undisputed evidence.