Civil Procedure
Appeals Lecture, W08
Exceptions to the Final Judgment Rule
Reading: Yeazell, pp 636-647
Devine Problems,  http://law.missouri.edu/devine/Appealproblems3.12.08.pdf



1.    Exceptions to the Final Judgment Rule, p 636–This section details for us a series of situations in which something less than a full final judgment on the merits can be the basis for appeal;
    a.    Remember, the general rule is that appeal lies ONLY from a final judgment–that is one that disposes of all issues against all parties;
    b.      Practical Finality, Lauro Lines v. Chasser, p 637
        i.     Facts;
            (1)     Plaintiffs are victims and relatives of  victims of the hijacking of the cruise ship Achille Lauro by terrorists.
            (2)     They sued the cruise line in the United States District Court for the southern district of New York, presumably for some sort of negligence in maintaining security on the vessel;
            (3)     Defendant is an Italian company, that presumably could be “found” in New York City and presumably federal jurisdiction is based on diversity;
            (4)     What is the issue?  In the ticket of plaintiffs is a forum selection clause indicating that the defendant cruise line can only be sued in Naples, Italy.  Defendants moved to dismiss the case from the United States courts based on this forum selection provision.  Court found that the ticket did not, in its entirety give the plaintiffs reasonable notice of the forum selection provision.  The trial court denied the motion to dismiss;
        ii.     Recall back to the Carnival Cruise Line case from the first semester, p 141.  In that case, there was a Florida forum selection clause and the cruise line moved for summary judgment when suit was filed in Washington State; In that case, the court granted the motion for summary judgment.  How is that case thus different from this case;
        iii.     When the court granted the motion for summary judgment, it dismissed the plaintiffs’ claim in the federal court in Washington–so what?
            (1)     At that point, there was a final judgment against the plaintiffs and they were entitled to appeal because of that final judgment;
            (2)     Here, the court did just the opposite, by denying the motion to dismiss based on the forum selection clause, what will happen next?  There will be a trial in the federal district court in Manhattan;
        iv.     Note, there is no claim here that the court’s decision is a final judgment within the meaning of §1291–instead, p. 637, bottom:, the defendant claims that the court’s decision to deny the motion fits within the very small class of cases that will nonetheless allow appeal of a non-final judgment that finally determines certain claims of right;
    c.     What are the tests for that relief? Bottom, p 637, top, p 638; Note that each of these tests must be satisfied;
        i.     the court’s decision must conclusively decide the disputed question; Does that happen here?  Sure, the trial court conclusively decided that the forum selection clause was not applicable;
        ii.     second, the issue resolved must be important and completely separate from the underlying action; Is that true here?  Sure, the decision about the forum selection clause does not have anything to do with the underlying negligence claim.  It is also important in the sense that it affects any claim brought against Lauro Lines;
        iii.     third, the question must be effectively unreviewable  at the conclusion of the underlying trial; And this is the real problem here;
            (1)     What kinds of cases does Court say that relief will be granted?  Absolute immunity cases–where the person is entitled not to be sued, there is nothing that will substitute for review of a decision whenever it is made;
                (a)     Look at notes on this, p 640 and notes 2 and 3.  First, when it is alleged that, as a matter of law, the person cannot be sued, that person can get the decision reviewed once, and, if necessary, reviewed again, all before trial;
            (2)     Does court find that this is such a case?
                (a)     No, the court compares this to cases in which a party loses a motion to dismiss because of an alleged absence of personal jurisdiction;
                (b)     Court tells us that the mere cost of having to go through a costly trial is not the kind of problem that makes the decision unreviewable;
            (3)     Note 5-6, p. 641-42 gives you some good ideas on the kinds of cases the court will view as part of the “effectively unreviewable doctrine;”
                (a)     Note how difficult it is to distinguish these cases from each other;
                (b)     What is essential in this area is that you know the test the court will use–not what the result will be;  As indicated in note 7, almost all of these cases could be argued either way;
        iv.    Finally, look at note 1(c), p 640;
            (1)    Lots of cases appear to cry out for some relief;
            (2)    And courts could grant such relief;
            (3)    But would be the result?
                (a)    As this note indicates, constant bickering by the parties who would go back and forth between the trial court and the court of appeals;
                (b)    That is simply not very efficient;
    d.      Injunctions, p 642–A second class of non-final judgments that can be appealed are Injunctions;
        i.     Under 28 U.S.C. §1292(a), a party is entitled to appeal the granting, refusing, modifying or dissolving of any injunction;
        ii.     Note this includes only preliminary injunctions–it does not include Temporary Restraining Orders, because those can last for only a maximum of ten days;
        iii.     Note here that the federal law significantly differs from Missouri law, which does NOT generally allow appeal of interlocutory injunctive orders because they are not, in Missouri, final judgments;
        iv.    Look at Devine Problem, Arthur’s Furniture Masterpieces
            (1)    In Question 1, the case is not Final.  
                (a)    There has been no trial and the merits have not been resolved.  
                (b)    Indeed, one of the problems here was that there was a sparse record from which the district court had to decide the preliminary injunction issue.
            (2)    In Question 2, §1292(a)(1) allows appeal of the denial of an injunction,
            (3)    but why would somebody do that?  
            (4)    In this case, wouldn’t it be more appropriate for Arthur’s Furniture to proceed directly to trial, prove the case, and win a judgment?  
            (5)    Some states, like Missouri, do not allow appeal of the denial of interlocutory injunctive relief for just this reason.
    e.      Interlocutory Appeals–a third class of cases in which a non-final judgment can be applied;
        i.     Consider this exception in the context of the Lauro Lines case–if the trial court wanted the decision on the forum selection clause ruled on by a court of appeals, what needed to happen?
        ii.     The trial judge would have to certify that the legal issue involved a controlling question of law as to which there was a substantial disagreement–here likely whether the placement of the forum selection clause on the  ticket was sufficient that it could be read and understood by the average passenger;
        iii.     Second, the trial judge would have to certify that the overall litigation in the federal court would be materially advanced by an immediate appeal–here, the entire appeal might go away if the appellate court disagrees with the trial judge;
        iv.     Third, the court of appeals would have to agree that this is the kind of case that would benefit from an interlocutory appeal;
        v.     Although the material indicates that this form of appeal is rarely used, I hope you can see that this would have been a better way to get to the Court of Appeals in the Lauro Lines case than what was tried;
        vi.     What practical problem exists?
            (1)     Getting the trial judge to go along–why would the judge in the Lauro Lines case want the court of appeals indicate that the trial judge was getting it wrong?
        vii.    Look at Devine Problem,  Ernesto Cruz, M.D, v. Community Hospital, Inc.
            (1)    Question 1 asks if the case is final?  No, it is not.  There has been no trial on the merits.  In fact, the case is barely at the discovery stage.
            (2)    Question 2 then is the important one.  
                (a)    What does “certified for interlocutory appeal” mean?  
                (b)    Look at both §1292(b)  
                (c)    Under §1292(b), when the court enters an order that would not normally be appealable,
                    (i)    if the court is of the view that the issue involves a “controlling question of law” over which there could be substantial disagreement,
                    (ii)    and an immediate appeal might hasten ultimate resolution of the case, the court may so indicate in the order.  
                    (iii)    The court of appeals MAY then allow the appeal.
            (3)    Now, look at this case in light of those elements:
                (a)    Does the issue involve a controlling question of law?  
                (b)    The question is whether these documents are privileged; a decision which is certainly a question of law.
                (c)    Could there be disagreement?  
                    (i)    This will depend on whether there is local precedent to answer the question.  
                    (ii)    There might be substantial disagreement if the federal court is asked, for example, to be the first to interpret state law.  
                    (iii)    There could be differing court of appeals and no state supreme court ruling.
                (d)    Will an immediate appeal hasten resolution of the dispute?  
                    (i)    If the records sought are privileged, assertion of privilege may doom Dr. Cruz’s case, because he will not be able to show a pattern of American doctors being treated better than he was.
            (4)    Note that the court of appeals would still have to agree to allow this appeal.
    f.      Mandamus, p 644–the final way in which a trial court’s interlocutory decisions can be reviewed by an appellate court is by mandamus or prohibition, as we have seen in a number of cases;
        i.     Mandamus and prohibition are generally called “extraordinary writs” because they should only be granted in rare cases;
        ii.     As material on p 645 indicates to you, these cases should be those that allege the trial court either lacks jurisdiction to do something (prohibition) or that exercise of jurisdiction is compelled by the law (mandamus);
        iii.     As we have seen, the writ of mandamus or prohibition is actually a separate law suit, rather than an appeal of the underlying suit–the trial judge becomes the defendant in the law suit;