Legal News

Appellate Procedures Blog Intro - Part 2

By Brian Harris

By Mandi L. Scott
Special to the Legal

As we learned in my first entry, Fed. R. App. P. 4(a)(2) and the Cape May Greene doctrine (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 permit a premature notice of appeal from a ?clearly interlocutory? order to ripen upon entry of the later final order. 

The 3rd U.S. Circuit Court of Appeals has decided two  cases relatively recently that explore that line between ?clearly interlocutory? and what I will call ?questionably interlocutory.? We know from the court?s opinion in DL Res. Inc. v. FirstEnergy Solutions Corp. that an order granting summary judgment on a breach of contract claim but not awarding any damages is only ?questionably interlocutory.? Compare this result to that reached by the 3rd Circuit in Adams v. Ford Motor Co., two years after its decision in DL Resources. 

In Adams, a sanctions order was entered before the final decision on the merits of the case. An appeal was filed from the sanctions order but not from the final order on the merits. The 3rd Circuit held that it did not have jurisdiction over the appeal.

The major difference between DL Resources and Adams is the type of interlocutory order at issue. In DL Resources, it was a summary judgment order without damages; in Adams, it was a sanctions order, the type of order commonly involved in cases applying the Firstier Mortgage rule that Rule 4(a)(2) may not be applied to save a clearly interlocutory appeal.

Are these types of orders so different as to result in an appeal being permitted to go forth in one case and not the other? The 3rd Circuit has decided they are. However, a majority of the other circuit courts, including the 1st, 5th, 7th, 8th, 11th, Federal and District of Columbia circuits, have declined to extend the Cape May Greene doctrine as far as the 3rd Circuit seems to have done in DL Resources.

It is often the case that there are certain steps a party may take in order to protect itself when faced with an issue of appellate procedure that has not been clearly settled by the courts. I hope to end most of these entries with a practical tip for avoiding many common appellate procedural traps. In the DL Resources case, in order to avoid any question as to the circuit court?s appellate jurisdiction, the appellant could have simply filed another notice of appeal from the final order entered by the district court, or an amended notice of appeal incorporating the district?s court?s second order pursuant to Fed. R. App. P. 4(a)(4)(B)(ii). 

Stay tuned next month for a discussion on motions for reconsideration. 

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 February 10, 2011 (boomark / email).