The Week in Federal Appellate Jurisdiction: May 9–15, 2021

Last week, the Eleventh Circuit said that it could review a remand order when the plaintiff raised a procedural defect only in her reply brief (which she filed more than 30 days after removal). The Sixth Circuit concluded that a Rule 54(b) partial judgment was proper despite some factual and legal overlap in the resolved and unresolved claims. And the Ninth Circuit rejected some defendants’ attempts to challenge the factual basis for a qualified-immunity denial, including their invocation of the blatant-contradiction exception. Plus the need for a second notice of appeal after a cost or fee decision, district court jurisdiction after a notice of appeal, and the order-designation requirement for notices of appeal.

• The Eleventh Circuit Reviewed the Grant of an Untimely Motion to Remand
• The Sixth Circuit Reviewed the Propriety of a Rule 54(b) Partial Judgment
• The Ninth Circuit Dismissed a Fact-Based Qualified-Immunity Appeal
• Quick Notes

The Eleventh Circuit Reviewed the Grant of an Untimely Motion to Remand

In Shipley v. Helping Hands Therapy, the Eleventh Circuit held that it could review a remand order when the plaintiff raised a procedural defect only in her reply brief, which came outside the 30-day window for noting procedural defects.

Shipley started as a medical malpractice claim in state court. The defendant later removed the case to federal court, contending that jurisdiction existed due to complete diversity. Within 30 days of removal, the plaintiff moved to remand. That motion argued only that the district court lacked subject-matter jurisdiction; it did not raise any procedural defects. But the plaintiff’s reply brief in support of her motion raised the procedural objection that the defendants’ removal was untimely. The district court agreed with the procedural objection and remanded the case to state court. The defendants then appealed.

28 U.S.C. § 1447(d) says that the courts of appeals lack jurisdiction—“by appeal or otherwise”—to review remand orders. (The statute contains a few exceptions to this bar that aren’t relevant to the present discussion.) The Supreme Court has held, however, that this bar applies only to remands authorized by § 1447(c): remands (1) due to a lack of federal jurisdiction or (2) on a timely motion pointing out a defect other than a lack of subject-matter jurisdiction.

The Eleventh Circuit concluded that the remand in Shipley was not one authorized by § 1447(c). Granted, the plaintiff filed a timely motion to remand. But that motion argued only that the district court lacked subject-matter jurisdiction. Only the plaintiff’s reply brief raised the procedural defect. And that brief came outside the 30-day window for moving to remand. So although the plaintiff moved to remand within 30 days, she raised the procedural defect outside of that 30-day window. The remand order was accordingly not based on a timely motion pointing out a procedural defect, and the Eleventh Circuit had jurisdiction to review it.

The Eleventh Circuit went on to hold that the failure to timely raise the procedural defect also amounted to a forfeiture of that objection. So the district court could not remand the case due to the procedural defect.

Shipley v. Helping Hands Therapy, 2021 WL 1805708 (11th Cir. May 6, 2021), available at the Eleventh Circuit and Westlaw.

The Sixth Circuit Reviewed the Propriety of a Rule 54(b) Partial Judgment

In S2 Yachts, Inc. v. ERH Marine Corp., the Sixth Circuit concluded that a district court properly entered a partial judgment under Federal Rule of Civil Procedure 54(b), despite some overlap in the resolved and unresolved claims.

S2 Yachts involved a variety of claims stemming from the termination of a retail agreement. Simplifying a bit, most of the claims turned on whether a contract still existed between a manufacturer and a retailer, or more specifically, whether the manufacturer could terminate the agreement without good cause. (I’ll call these the “contract claims.”) The rest of the claims were business torts. The contract claims turned entirely—and one of the business torts, partially—on what law applies: that of Michigan or the Dominican Republic? At summary judgment, the district court determined that Michigan law applied. That meant no good cause was required, there was no valid contract, and the manufacturer prevailed on all of the contract claims. The non-existence of a contract was also relevant to some of the business-tort claims, and the district court’s decision also determined which law applied to those claims. After a trial on the remaining claims was delayed due to COVID-19, the district court entered a Rule 54(b) partial judgment on the contract claims, and the retailer appealed.

Before addressing the merits, the Sixth Circuit reviewed the propriety of the partial judgment. Rule 54(b) allows district courts to enter a partial judgment on the resolution of some (but not all) claims in a multi-claim or multi-party suit, rendering that resolution final and thus appealable. But Rule 54(b) is not limitless. The partial judgment must involve claims distinct from those that remain unresolved. And the district court must properly exercise its discretion in concluding that there is no just reason for delaying an appeal.

The Sixth Circuit determined that the partial judgment was proper. The claims were sufficiently distinct, as the resolved claims all turned on a common choice-of-law question, while the remaining claims concerned unrelated tort issues. Granted, there was some overlap in the claims—namely, “the existence and validity” of an ongoing contract. But that overlapping issue did not amount to “an ‘aggregate’ of operative facts” that would render the partial judgment improper. And the district court did not abuse its discretion in concluding that no just reason existed to delay the appeal. Again, the resolved and unresolved claims had some overlap in the choice-of-law question. But that overlap was “not itself reason to delay the appeal.”

S2 Yachts, Inc. v. ERH Marine Corp., 2021 WL 1943371 (6th Cir. May 14, 2021), available at the Sixth Circuit and Westlaw.

The Ninth Circuit Dismissed a Fact-Based Qualified-Immunity Appeal

In Lawrence v. Bohanon, the Ninth Circuit rejected defendants’ attempts to challenge the factual basis for a denial of qualified immunity.

Lawrence involved a fatal shooting by police officers. The decedent initially ignored the officers’ commands to surrender, and the officers shot him five times. The decedent fell to the ground. A few seconds later, the officers shot him four more times, and another officer deployed a police dog that bit the decedent. The decedent’s estate sued, and the district court denied the officers’ request for qualified immunity. According to the district court, a reasonable jury could conclude that the decedent was not moving or posing a threat when the officers first shot and was incapacitated when they shot him again.

The officers appealed. But in that appeal, they challenged the district court’s reading of the record. They argued that the decedent was not incapacitated but was instead attempting to stand when the officers shot him again. And that was a problem. Although defendants have a right to immediately appeal from the denial of qualified immunity, Johnson v. Jones holds that those appeals have a narrow scope when the appeal comes from the denial of summary judgment. With rare and narrow exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. They 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.

Defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. That’s precisely what the officers in Lawrence did. The officers also tried to invoke the blatant-contradiction exception to this general rule: when something in the summary-judgment record “blatantly contradicts” the facts that the district court thought a reasonable jury could find, the court of appeals can ignore the district court’s conclusions and review the record de novo.

The Ninth Circuit rejected this invocation of the blatant-contradiction exception, concluding that a video of the shooting did not show a sufficient contradiction. Indeed, a jury viewing the video could find the plaintiffs’ version of events—that the decedent was obviously incapacitated. The court accordingly dismissed the appeal for a lack of jurisdiction.

Lawrence v. Bohanon, 2021 WL 1944386 (9th Cir. May 14, 2021), available at the Ninth Circuit and Westlaw.

Quick Notes

In Dewar v. Felmon, the Seventh Circuit reminded litigants that they normally must file a new notice of appeal after the district court decides a request for fees or costs. The plaintiff in Dewar filed only one notice of appeal, after the district court entered its judgments on the merits of the plaintiff’s wrongful-arrest claim. But he did not file another one after the district court subsequently awarded the plaintiff only some of the costs (and none of the attorneys’ fees) that he sought. This failure left the Seventh Circuit without jurisdiction over the costs and fees decision. A notice of appeal from a merits decision normally does not provide for an appeal over a subsequent cost or fees decision. “Each award—merits, fees, and costs—starts its own period for appeal.” So unless the district court decides those issues in close proximity to one another, one notice of appeal is not enough. In cases like Dewar—in which the cost and fees decision came well after the merits decision—the plaintiff needs to file a second notice of appeal.

Dewar v. Felmon, 2021 WL 1944371 (7th Cir. May 14, 2021), available at the Seventh Circuit and Westlaw.

In Colón-Torres v. Negrón-Fernández, the First Circuit held that a district court could not order discovery in assistance of enforcing a judgment after a party appealed from an order enforcing that judgment. The district court in Colón-Torres ordered that a defendant immediately pay the plaintiff $10,000 as part of a settlement, and the defendant appealed. Shortly thereafter, the district court ordered discovery in aid of enforcing that order. The First Circuit said that the district court couldn’t do that after the defendant appealed. The information sought in discovery was relevant only to the enforcement of the judgment. So it was too related to the appealed issue for the district court to retain jurisdiction.

Colón-Torres v. Negrón-Fernández, 2021 WL 1850555 (1st Cir. May 10, 2021), available at the First Circuit and Westlaw.

And in General Star Indemnity Co. v. Triumph Housing Management, LLC, the Eleventh Circuit said that a notice of appeal designating interlocutory orders was sufficient to appeal a final judgment. Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal designate (among other things) the order or judgment that the appellant wants to appeal. The appellant in General Star Indemnity designated only two interlocutory decisions dismissing some of its claims; it did not mention the district court’s final decision in the notice. But that was okay. The interlocutory orders merged into the final judgment, so a notice of appeal mentioning only interlocutory orders satisfied Rule 3(c)’s requirement of specifying the judgment “or part thereof” being appealed.

General Star Indemnity Co. v. Triumph Housing Management, LLC, 2021 WL 1921851 (11th Cir. May 13, 2021), available at the Eleventh Circuit and Westlaw.