Legal News

Appellate Procedures Blog Introduction - Part 1

By Brian Harris

By Mandi L. Scott
Special to the Legal

Happy 2011! This is the first installment of a new appellate blog I will be writing, with an emphasis on appellate procedure. Appellate practice is predominately rule driven and I think that is why I enjoy it so much.When a procedural question arises, there is usually a rule that governs it. Seems simple enough, right? Not always. Determining which rule applies, and with what result, is where the fun begins.

To start this blog, I have chosen to focus on an issue concerning the proper start of an appeal in the federal courts.  In general, appeals are only permitted from final orders, according to 28 U.S.C. §1291. Failure to file an appeal from a final order deprives the federal circuit courts of appeal of subject matter jurisdiction.

However, in certain cases, the Federal Rules of Appellate Procedure allow a premature appeal to ripen when followed by the entry of a final order, as in  Fed. R. Civ. P. 4(a)(2).

Rule 4(a)(2) and the ?Cape May Greene doctrine? (taken from Cape May Greene Inc. v. Warren, stating a premature appeal taken from an order that is not final but is followed by an order that is final may be regarded as an appeal from the final order in the absence of the showing of prejudice to the other party) do not go so far as to permit a notice of appeal from a clearly interlocutory order.  Firstier Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S. 269 (1991).  The question thus becomes, what is a ?clearly interlocutory? order?

The 3rd U.S. Circuit Court of Appeals recently decided two cases involving this issue. In the first, DL Res., Inc. v. FirstEnergy Solutions Corp., the district court entered summary judgment in favor of the plaintiff on certain issues and in favor of the defendant on other issues. Although the docket was then marked ?case closed,? the district court?s judgment order did not award any monetary damages to the plaintiff.

The plaintiff filed a motion to amend the district court?s judgment pursuant to Fed. R. Civ. P. 59(e) and 54(c), seeking to have the district court award damages in the plaintiff?s favor. However, before that motion was disposed of by the district court, the defendant filed a notice of appeal to the 3rd Circuit. 

The district court subsequently entered an amended judgment order, including a specified amount of damages, in favor of the plaintiff. While Fed. R. Civ. P. 4(a)(4)(B)(ii) requires a party intending to challenge an order disposing of, inter alia, a motion to amend judgment, to file a notice of appeal or an amended notice of appeal, the appellant in DL Resources took no such action.

On appeal, the plaintiff/appellee questioned the circuit court?s appellate jurisdiction because a premature appeal was filed from a non-final summary judgment order granting liability but not damages. The circuit court ultimately concluded that, pursuant to the Cape May Greene doctrine, the court had jurisdiction to consider the appeal.

Thus, it appears that, at least in the 3rd Circuit, an order granting summary judgment but not awarding damages is not ?clearly interlocutory.? Stay tuned next month where my analysis of this issue will continue, by comparing the result in DL Resources to that reached by the 3rd Circuit in Adams v. Ford Motor Co., just two years after DL Resources. 

Mandi L. Scott is an associate with the Pittsburgh-based law firm of Goehring Rutter & Boehm, where she has been practicing since 2004. Currently, her practice focuses on appellate issues and municipal law. To contact her, e-mail mscott@grblaw.com.

Full post as published by The Legal Intelligencer Blog on January 13, 2011 (boomark / email).