Dismissals without prejudice, undoing pre-Baker dismissals, cert petitions on the scope of qualified-immunity appeals, and more.
November 19, 2019
Last week, the Fifth Circuit granted rehearing en banc in Williams v. Taylor Seidenbach, Inc. to address appealing dismissals without prejudice. The Ninth Circuit gave some relief to those who—in reliance on Ninth Circuit caselaw that was abrogated by Microsoft Corp. v. Baker—voluntarily dismissed their cases to appeal a class-certification denial. And two new cert petitions seek to expand the scope of interlocutory qualified-immunity appeals.
Rehearing en banc granted in Fifth Circuit’s zombie action
The Fifth Circuit granted rehearing en banc in Williams v. Taylor Seidenbach, Inc..
I’ve covered Williams several times on this site. The panel essentially held that (1) a judgment was not “final” when the plaintiffs had voluntarily dismissed claims against a few defendants without prejudice and (2) the plaintiffs could not change their dismissals to be with prejudice. So proceedings were over in the district court, but the plaintiffs could neither appeal nor do anything to secure an appeal. The plaintiffs were stuck with a zombie action: the case was over in the district court but not final—and never could be final—for purposes of appeal. Judge Haynes concurred, noting that Fifth Circuit caselaw mandated this odd state of affairs. But she also called for the court to rehear the case en banc to correct this “egregious mess.”
When Williams was decided, I wrote that the decision was absurd and needs to be reversed en banc. Hopefully that’s where we’re heading.
You can read my prior coverage on Williams here: The Fifth Circuit Creates a Zombie Action. The order granting rehearing en banc is available from the Fifth Circuit, although there isn’t much to see in it.
The Ninth Circuit undid a voluntary dismissal that was meant to appeal a class-certification denial
In 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 had 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).
You can read my summary and analysis of Henson here: Undoing Voluntary Dismissals of Class Actions After Baker
Henson v. Fidelity National Financial, Inc., 2019 WL 6042821 (Nov. 15, 2019), available at the Ninth Circuit and Westlaw.
Two cert petitions on the scope of qualified-immunity appeals
The scope of interlocutory qualified-immunity appeals is a current focus of my research and a regular topic on this site. It’s also an area of some uncertainty and difficulty for courts and litigants, and it’s ripe for reform.
Last week saw two cert petitions asking the Supreme Court to address the scope of these appeals, particularly the extent to which Johnson v. Jones prohibits appellate courts from reviewing inferences the district court drew from the summary-judgment record. But both petitions are heading in the wrong direction, asking the Court to expand the scope of review of qualified-immunity appeals.
The first is Vizcarra v. Ortiz. I mentioned the Ninth Circuit’s decision in a previous weekly roundup, although I didn’t have much to say; the court’s decision was short on details. The case involved claims for excessive force and unlawful seizure, and the panel split on whether Scott v. Harris’s blatant-contradiction exception to Johnson applied. The majority concluded that a video of the incident did not “blatantly contradict” or “utterly discredit” the plaintiff’s version of the facts. Dissenting, Judge Fernandez contended that the video showed “beyond peradventure” a scenario that entitled the defendants to qualified immunity.
The second is Graf v. Koh. I wrote about this case in some depth when it came out. You can read that post for details. But the basics are that it involves a claim that officers unlawfully coerced the plaintiff into falsely confessing that he killed his son. On appeal from the district court’s denial of qualified immunity, all of the defendants’ arguments disputed the version of facts assumed by the district court, arguing that a video of the interrogation showed that they were entitled to qualified immunity. The Seventh Circuit accordingly dismissed the appeal for lack of jurisdiction.
Each petition presents several questions. But the first question in both asks if the scope of an interlocutory qualified-immunity appeal includes review of the inferences a district court draws from otherwise-undisputed evidence. And both argue that the district court’s inferences should be within the scope of review.
I’ll be following these closely. I recently completed an article on the scope of interlocutory qualified-immunity appeals. I primarily addressed Scott’s blatant-contradiction rule. But I also explained (pages 49–56 of the current draft) the faults in the “inferences” rule that both petitions argue for: it effectively overrules Johnson v. Jones, and it draws an odd distinction between direct and circumstantial evidence
The response in Vizcarra is due December 13, 2019. The response in Graf is due December 16, 2019.
Petition for a Writ of Certiorari, Vizcarra v. Ortiz, No. 19-614, available at the Supreme Court and Westlaw.
Petition for a Writ of Certiorari, Graf v. Koh, No. 19-624, available at the Supreme Court and Westlaw.
The First Circuit limited its review to orders designated in a notice of appeal
In In re Kupperstein, the First Circuit held that a notice of appeal that designated orders entered on a particular day precluded review of orders entered on any other days. The notice of appeal mentioned only “orders entered . . . on December 17, 2018.” But the appellant also sought review of an order entered three months earlier.
The First Circuit refused to review this earlier order. It said that although “notices of appeal are to be liberally construed, if the appellant chooses to designate specific determinations in her notice of appeal—rather than simply appealing from the entire judgment—only the specified issues may be raised on the appeal.” The appellant in Kupperstein did not argue for an exception to this general rule, so the First Circuit concluded that it lacked jurisdiction to review the earlier decision.
This is another silly decision that uses the notice-of-appeal designation requirement to limit the scope of an appeal. The proposed amendments to Rule 3(c)—which would abrogate this practice—can’t come soon enough.
In re Kupperstein, 2019 WL 6044091 (1st Cir. Nov. 15, 2019), available at the First Circuit and Westlaw.
The Third Circuit allowed an appeal from a dismissal without prejudice
Finally, in Anderson v. Local 435, the Third Circuit held that a plaintiff could appeal a dismissal without prejudice by standing on his complaint. The plaintiff in Anderson—a former General Motors employee—sued GM and his union. GM successfully moved to dismiss the claims against it. But the union never responded. Rather than enter a default judgment against the union—the plaintiff failed to state a claim against the union, so a default judgment wasn’t warranted—the district court dismissed the claims against it without prejudice. All of his claims being dismissed, the plaintiff then appealed.
A dismissal without prejudice is sometimes not final, as plaintiffs might use the dismissal to secure an otherwise improper appeal. The concern is that the plaintiff will dismiss claims without prejudice, appeal the resolution of other claims, and then—regardless of the appeal’s outcome—reinstitute the dismissed claims. But this rule should apply only insofar as it makes sense; lots of dismissals without prejudice mark the end of litigation and should be appealable. Still, courts sometimes struggle with what to do when a complaint is dismissed without prejudice; the Fifth Circuit’s Williams decision discussed above is just one example.
Thankfully the Anderson court handled this sensibly. The plaintiff had indicated his intention to stand on his complaint. So although the complaint was technically dismissed without prejudice, the plaintiff disavowed any intention (or right) to amend or refile. That rendered the dismissal final enough for an appeal.
Anderson v. Local 435, 2019 WL 6048542 (3d Cir. Nov. 15, 2019), available at the Third Circuit and Westlaw.