Archive for the ‘Bruce Merenstein’ category

Premature Notices of Appeal

September 5, 2008

Categories: Appellate Law; Bruce P. Merenstein

A recent decision by the 3rd U.S. Circuit Court of Appeals adds to the confusion involving an already muddled area of the law: premature notices of appeal.

It is a fundamental principle of federal appellate practice that, with certain narrow exceptions, appeals only lie from final judgments.  Thus, a notice of appeal filed before a final judgment is entered generally is considered premature and ineffective to confer appellate jurisdiction on a court of appeals.  Yet, this seemingly straightforward rule is complicated by exceptions outlined in the federal rules and contradictory rulings by the federal courts of appeals.  And the 3rd Circuit’s recent decision in the case of DeJohn v. Temple University only adds to the confusion.

Rule 4 of the Federal Rules of Appellate Procedure governs the timeliness of notices of appeal in federal court.  Rule 4(a) provides that notices of appeal must be filed within 30 days after entry of judgment, but then sets forth two exceptions.  First, under Rule 4(a)(2), when a notice of appeal is filed after a trial court announces a decision, but before the court actually enters judgment, the notice is treated as if it were filed on the date that the court subsequently enters judgment.  Second, under Rule 4(a)(4), where a party files a notice of appeal before a trial court disposes of any post-trial motions, the notice of appeal becomes effective upon the trial court’s disposition of the last post-trial motion — in the words of the committee notes to the rule, the notice of appeal “ripens” at that time.

The presence of these two exceptions might appear to foreclose other exceptions to Rule 4(a)’s requirement that all notices of appeal be filed within 30 days after entry of final judgment.  But 25 years ago, the 3rd Circuit created a broader exception in Cape May Greene Inc. v. Warren.  In Cape May Greene, the plaintiff filed a notice of appeal after summary judgment was entered against it but before a cross-claim filed by one of the defendants was resolved.  Two months after the plaintiff filed its premature notice of appeal, the parties stipulated to dismissal of the remaining cross-claim.  The 3rd Circuit held that, absent prejudice to the appellee, the premature notice of appeal could ripen upon entry of final judgment and confer jurisdiction on the court over an appeal from that final judgment.

Eight years later, in FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., the Supreme Court was called upon to interpret the exception in Rule 4(a)(2) and held that, “Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to operate as a notice of appeal from the final judgment only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment.”  Some courts of appeals have interpreted this language from FirsTier as limiting the scope of the exceptions to Rule 4(a)’s requirement that notices of appeal be filed after final judgment has been entered.  Under these courts’ decisions, a notice of appeal filed from a decision that does not dispose of all claims by all parties (such as the one in Cape May Greene granting summary judgment on some but not all claims) does not ripen upon the subsequent entry of a final judgment.

The 3rd Circuit, however, reaffirmed its Cape May Greene exception eight years after FirsTier was decided, in Lazy Oil Co. v. Witco Corp.  In Lazy Oil, objectors to a class action settlement filed a notice of appeal 29 days after the district court entered an order approving the settlement, but more than two months before the district court approved an allocation plan for the settlement and entered final judgment in the case.  The 3rd Circuit raised sua sponte the issue of its appellate jurisdiction, but concluded that the Supreme Court’s decision in FirsTier had not altered the Cape May Greene doctrine.  Finding the premature notice of appeal ripened upon entry of final judgment two months later, the court held that the two exceptions in Rule 4 were not the only situations in which “a premature notice of appeal will become effective at a later date.”

The expansive view of the premature notice of appeal doctrine set forth in Cape May Greene and Lazy Oil has been adhered to in numerous subsequent 3rd Circuit cases.  As recently as last October, a panel of the 3rd Circuit invoked these cases and, while expressing some skepticism about the expansive view, noted that the court was “bound by our prior interpretation regarding the scope and effect of Rule 4 unless and until we revisit that determination en banc.”  In that case, DL Resources, Inc. v. FirstEnergy Solutions Corp., the court held that it had jurisdiction over a final judgment when the notice of appeal was filed after the trial court fixed liability but before it determined the amount of damages and entered final judgment.

Despite this continued adherence to the Cape May Greene doctrine, a panel of the 3rd Circuit issued a decision last month that took a much more limited view of the premature notice of appeal doctrine.  In DeJohn v. Temple University, the court held that a notice of appeal filed after disposition of a particular claim but before determination of damages for that claim was premature and did not ripen upon the award of damages and entry of final judgment.  Thus, the premature notice of appeal was ineffective to confer appellate jurisdiction on the court over an appeal from the award of damages.  The court failed to mention either Cape May Greene or Lazy Oil, or to distinguish the cases such as DL Resources that specifically held that a notice of appeal filed after a determination of liability but before an award of damages ripened upon entry of the damages award and final judgment.  Instead, the court cited Rule 4(a)(2) and FirsTier, and implied (contrary to the holding in Lazy Oil) that Rule 4(a)(2) sets forth the only situation in which a premature notice of appeal will ripen upon entry of final judgment.

The 3rd Circuit’s recent decision in DeJohn only adds to the uncertainty regarding premature notices of appeal that arose from the Supreme Court’s decision in FirsTier and the 3rd Circuit’s adherence to the Cape May Greene doctrine in Lazy Oil.  This confusion is unlikely to abate until the 3rd Circuit addresses the premature notice of appeal issue en banc or the Supreme Court resolves the circuit split that has followed its decision in FirsTier.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP


There’s Wrong and Then There’s Really, Really Wrong

August 25, 2008

Whenever a trial court ruling is reversed on appeal, the appellate court is effectively telling the trial court, “You got it wrong.” In some cases, however, a district court has to do more than issue a ruling on the merits of a case; it must opine on the likely success of an appeal from its ruling. For example, where a losing party seeks a stay of a district court order, one of the elements of the test for granting or denying the stay is the losing party’s likelihood of success on appeal. In those situations, the trial court is really sticking its neck out: if it opines that its ruling is not likely to be reversed on appeal (as trial courts invariably do), and, in fact, its ruling is reversed on appeal, it was doubly wrong.

Under the Prison Litigation Reform Act, the stakes are even higher, as trial courts sometimes must opine not only that their rulings dismissing a prisoner’s civil rights case are correct but that any appeal from that ruling is “not in good faith” and/or “frivolous.” A reversal in such a case would be the equivalent of the appellate court informing the district court, “You not only got it wrong, but you got it really, really wrong.”

Last week, the 3rd U.S. Circuit Court of Appeals issued just such a decision, in the case of Briscoe v. Klaus. In Briscoe, plaintiff Orland Briscoe brought a pro se civil rights case against several Pennsylvania prison officials. Following discovery, the district court scheduled a final pre-trial conference. The day before the conference, prison officials notified the court that Briscoe refused to be transported to the conference. The court issued an order warning Briscoe that his case could be dismissed for failure to prosecute if he did not show up at the conference, but prison officials informed the court that Briscoe still refused to be transported to the conference. The court dismissed Briscoe’s case, with prejudice, for failure to prosecute. It also stated, in its dismissal order, “Any appeal from this Order will be deemed frivolous, lacking in probable cause and not in good faith.”

Briscoe appealed, and the 3rd Circuit appointed counsel to represent Briscoe on appeal. In its decision last week, the court of appeals held that the district court erred in dismissing Briscoe’s case. Although the court undertook an analysis under its seminal “failure to prosecute” case, Poulis v. State Farm Fire & Casualty Co., its reasoning boiled down to a very simple (and seemingly obvious) proposition: the district court should not have placed blind faith in the prison officials’ assertion that Briscoe refused to be transported to the pre-trial conference. Even aside from the fact that prison officials were defendants in Briscoe’s action, the severe sanction of dismissal for failure to prosecute could not be predicated on a bald assertion of a plaintiff’s dilatoriness. Rather, as the court held, “the District Court must provide the plaintiff with a full and fair opportunity to be heard regarding his failure to comply with the court’s orders” before the court can analyze the Poulis factors and dismiss for failure to prosecute.

Thus, the district court was not only wrong to dismiss Briscoe’s case, but it was further wrong to deem his (ultimately successful) appeal “frivolous, lacking in probable case and not in good faith.” District courts are affirmed on appeal much more often than they are reversed, but on occasion, such as in the Briscoe case, they not only get it wrong, they get it really, really wrong.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP

Manufacturing Mootness

June 27, 2008

Federal courts of appeals deny petitions for rehearing every day and, unless a judge on the court dissents, there is seldom an opinion accompanying the denial. A case from the 11th U.S. Circuit Court of Appeals offers an exception to the rule and a lesson for lawyers who might be thinking about pushing the envelope of appellate advocacy.

Perez v. Sanford-Orlando Kennel Club would appear to be a garden-variety wage and hour dispute under the Fair Labor Standards Act, or FLSA. The amount of money involved in the case was just a couple thousand dollars. Yet, the defendants’ attorney risked sanctions (hinted at but not imposed by the court of appeals) or, at a minimum, scorn and opprobrium, for the tactics he employed in an effort to avoid a precedent he feared.

At trial, a jury found in favor of plaintiff and against most of the defendants, awarding $2,100 in damages. Both sides appealed, the defendants challenging the judgment and the plaintiff challenging the court’s failure to award him liquidated damages. After briefing and oral argument, the parties effectively settled their dispute, with defendants agreeing to pay the $2,100 judgment plus interest, as well as attorneys’ fees of about $29,000. They even filed a satisfaction of judgment with the trial court.

But nobody told the court of appeals. In fact, the court’s opinion makes clear that this omission was intentional. The defendants had two other FLSA cases pending in the trial court raising the same issues. Apparently thinking they could create a no-lose situation for themselves, the defendants chose to let the appeal proceed, figuring that if the court came out their way, they would have a good precedent to invoke in the pending cases (and any others that came down the pike), a result they must have thought worth the $31,000 and change they had paid to “settle” the first case. And if the court of appeals ruled against them, creating unfavorable precedent, well, they had an answer for that as well: file a petition for rehearing, seeking to have the court’s opinion vacated on the ground that the appeal was mooted when the defendants satisfied the judgment — more than three months before the court issued its decision.

Not surprisingly, the court was none too pleased by the defendants’ gamesmanship. It didn’t help matters that the defendants filed a supplemental brief in the court of appeals on a particular merits issue after oral argument and after settling the case, but did not mention at that time that the case was moot. Even more troubling, the defendants asked the trial court in the two pending cases to stay proceedings pending the outcome of the court of appeals’ decision in the Perez case — an outcome they would later argue was invalid because of the settlement that had occurred before they sought the stay.

Given all of these circumstances, the court of appeals denied the petition for rehearing, holding that the appeal was not moot because the parties clearly indicated their intent to pursue their appeals, even after the putative settlement.  That conclusion is no doubt correct, though left unsaid by the court is the fact that the defendants apparently intended to pursue their appeal only if they won.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP

Clarification Needed of Amendments to Rule 1925

June 13, 2008

Last year, the Pennsylvania Supreme Court adopted major amendments to Rule 1925 of the Pennsylvania Rules of Appellate Procedure, the rule requiring an appellant to list alleged errors by the trial court after a notice of appeal is filed.  While the purpose of the rule is to identify alleged errors so that the trial court can write an opinion for use in the appeal, the rule had morphed into a major waiver trap for practitioners in light of recent Supreme Court and Superior Court rulings. The 2007 amendments, the first to be adopted in almost 20 years, arose from a movement among appellate practitioners to address what was seen as an overzealous waiver regime under these rulings.

More recently, in March of this year, the Appellate Court Procedural Rules Committee proposed amendments to Rule 2116, the rule governing the statement of the questions involved in appellate briefs. Among other things, the proposed rule expands the page limit for questions involved to two pages, from one, and clarifies that the questions must be “expressed in the terms and circumstances of the case but without unnecessary detail.”

Both the significant amendments to Rule 1925 and the proposed changes to Rule 2116 are welcome revisions to rules that had become outdated and problematic.  Now that the Appellate Court Procedural Rules Committee has tackled these important rules, it should turn its attention to other troublesome appellate rules that are in need of repair.  What follows is one appellate practitioner’s wish list.

First, Rule 2118 provides that the required summary of the argument “should not exceed one page and should never exceed two pages.”  Huh?  Is the page limit for the summary one page or two? Clarification is plainly in order.

Second, Rule 2117(c) requires an appellant to set forth in the statement of the case the place in the trial record reflecting the raising or preserving of issues raised on appeal.  This is a salutary rule that allows the appellate court to quickly confirm that issues it is being asked to address were properly preserved below.  But then Rule 2119(e) requires the appellant to include the same information in the argument section of the brief (or to include a cross-reference to the page in the statement of the case where this information can be found). What can be the point of requiring this information in two places in the same brief? Particularly given the repeated request from appellate judges that practitioners shorten their briefs and cut down on redundant discussions and arguments, it makes no sense to require the appellant to twice cite to the portion of the trial record where every issue has been preserved.

In a similar vein, Rule 2117(a)(4) requires that the statement of the case include a statement of all facts “necessary to be known in order to determine the points in controversy,” along with citation to the place in the record where evidence supporting those facts can be found.  Again, this is standard practice for appellate practitioners. One would never write an appellate brief without setting forth the facts relevant to the legal arguments, along with supporting citations to the record.  Yet, Rule 2119(c) provides that, if reference is made in the argument section to any factual matter in the record, the argument must “set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears.”  Again, in an era of burgeoning appellate dockets and longwinded briefs, is it really necessary to repeat record citations in both the fact and argument sections of a brief?

Other rules also could use minor tweaking or major overhauls, to clarify and modernize practice in the Pennsylvania appellate courts.  But following on the heels of the important amendments to Rule 1925 and the proposed modifications to Rule 2116, the changes suggested above would constitute a modest effort at clarifying and modernizing appellate procedure in Pennsylvania.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP


High Court Quibbles Over Definition of ‘Proceeds’

June 11, 2008

Most decisions issued by the United States Supreme Court include a majority opinion, supported by at least five of the court’s justices (assuming full participation by the court’s nine justices).  Yet, occasionally, the court is fractured, with no five justices agreeing on a single rationale for disposing of the case.  In those situations, as cited in Grutter v. Bollinger, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” 

This proposition is well-established and typically is applied in a later case when the court is determining the precedential effect of a prior case decided without a majority opinion.  In a recent decision, United States v. Santos, involving the interpretation of the word “proceeds” in the federal money-laundering statute, however, Justice Antonin Scalia took the unusual step of expressing his view regarding the precedential effect of the very case the court was deciding.

In the penultimate paragraph of his plurality opinion that was joined by Justices David Souter and Ruth Bader Ginsburg, Scalia noted, “We think it appropriate to add a word concerning the stare decisis effect of Justice Stevens’ opinion.  Since his vote is necessary to our judgment, and since his opinion rests upon the narrower ground, the Court’s holding is limited accordingly.”  So far, no problem.  But then Scalia went on to critique Justice John Paul Stevens’ “speculations,” which, according to Scalia, “address a case that is not before him, are the purest of dicta, and form no part of today’s holding.”  Id.  Not done yet, he concluded with a pointed warning to counsel in later cases that, while they may argue that Stevens’ view in Santos was the holding of the court, Stevens’ view was expressly rejected by a majority of the court.

The issue thus joined, Stevens struck back.  Using Scalia’s own words — “the purest of dicta” — to describe Scalia’s opinion regarding the effect of Stevens’ opinion, Stevens explained the actual basis for the result he reached, one not based on speculations.  Not wanting to be left out, Justice Samuel Alito, in a dissent joined by three other justices, noted that he agreed with some of Stevens’ reasoning but not all of it.  And, in a riposte to Scalia, Alito noted in a footnote, “In light of the plurality opinion’s discussion of ‘the stare decisis effect of Justice Stevens’ opinion,’ it must be noted that five Justices agree with the position taken by Justice Stevens on the matter discussed in the preceding sentence of the text.”

Good luck to practitioners and lower court judges in the many cases to come where “proceeds” of money laundering are at issue and the Santos decision is the precedent (whatever that precedent may be) most on point.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP