Developments in the Pennsylvania Forum Non Conveniens Doctrine

On August 24, Duane Morris partner Rob Palumbos will present a CLE webinar at the Pennsylvania Defense Institute about developments in the forum non conveniens doctrine in Pennsylvania. Over the last several years, the Pennsylvania Superior Court has been extremely active on this issue, issuing approximately two dozen new precedential decisions. For more information or to register, please visit the Pennsylvania Defense Institute’s website.

Changes to Notices of Appeal

On December 1, 2021, several welcome amendments to Rule 3 of the Federal Rules of Appellate Procedure will take effect (barring highly unlikely Congressional action). These changes clarify and simplify the requirements for notices of appeal.

First, the amendments make clear that a notice of appeal encompasses all interlocutory orders that merge into the designated judgment or appealable order. Appellants need not specifically designate such interlocutory orders in the notice.

Those provisions eliminate a waiver trap that some courts had created by holding that an appellant’s designation of certain interlocutory orders in the notice of appeal excluded review of undesignated orders. The amendments provide that designations of specific orders will not limit the scope of the notice of appeal without an express statement that the notice is so limited.

Second, the amendments make clear that a notice encompasses the final judgment when it identifies a final order that resolves all remaining claims or an order that resolves a post-judgment motion. That change removes waiver traps that had developed based on Rule 3’s prior requirement that a notice designate the “judgment.”

Some courts had held that where an appellant described a final order as an “order” rather than a “judgment,” the notice was limited to that order, excluding review of interlocutory orders that merged into the judgment. Likewise, some courts treated a notice of appeal that designated only an order disposing of a post-judgment motion as limited to that order, excluding review of the judgment itself. The amendments eliminate both traps.

While the amendments reflect the law that already governed in many jurisdictions, they are still a welcome change. The amendments eliminate ambiguity that had caused problems in certain jurisdictions and provide clarity for practitioners.

Supreme Court to Review Limitations on Appellate Extensions

The U.S. Supreme Court has granted certiorari in a case that will provide much needed clarity about the ability of district courts to extend appeal deadlines. The case, Hamer v. Neighborhood Housing Services of Chicago (No. 16-658), involves the interplay between 28 U.S.C. § 2107(c) and Federal Rule of Appellate Procedure 4(a)(5)(C). The Court will hear the case during its October 2017 term.

Section 2107(c) provides that district courts may extend the deadline to appeal “upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal.” Rule 4(a)(5)(C), however, provides that no extension “may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.”

In Hamer, the Seventh Circuit held that the district court lacked authority to grant a 60-day extension of an appeal deadline in response to a motion that was timely filed under 28 U.S.C. § 2107(c). Relying on the Supreme Court’s decision in Bowles v. Russell, 551 U.S. 205 (2007), the Seventh Circuit held that “Rule 4(a)(5)(C) is the vehicle by which § 2107(c) is employed and it limits a district court’s authority to extend the notice of appeal filing deadline to no more than an additional 30 days.” Because the notice of appeal was filed after the 30-day limitation in Rule 4(a)(5)(C), the Seventh Circuit dismissed.

In reaching that conclusion, the Seventh Circuit sided with the Second, Fourth, and Tenth Circuits, which had split with the D.C. and Ninth Circuits on the issue. The Supreme Court’s decision in Hamer should resolve the split and provide the bench and bar with much needed certainty about deadlines to appeal.

A Judge’s Perspective on Interlocutory Appeals

It is one thing to know the high standards that govern requests for discretionary interlocutory appeals. It is quite another to hear two federal judges describe first-hand their extreme reluctance to permit such appeals.

Circuit Judge Thomas Ambro of the United States Court of Appeals for the Third Circuit and District Judge Harvey Bartle of the District Court for the Eastern District of Pennsylvania offered that perspective at a meeting of the Philadelphia Bar Association’s Appellate Courts Committee on April 15. The most striking theme of their presentation was that it is—and, in their view, should be—very hard to obtain permission for a discretionary interlocutory appeal.

Judge Bartle recalled entering no more than two Rule 54(b) orders to permit an interlocutory appeal and certifying only one interlocutory appeal under 28 U.S.C. § 1292(b) in his 23-year judicial career. He noted that district judges are very reluctant to permit interlocutory appeals because they tend to cause delay in trial proceedings.

With respect to appeals under § 1292(b) specifically, Judge Bartle said that he rarely sees grounds for a substantial difference of opinion on the legal issue involved. In particular, he noted that district judges tend not to be moved by a split in authority between themselves and a court in another district. The circumstance in which a substantial difference of opinion is most likely to be found is where district judges within the same district are split on an issue.

Judge Ambro discussed interlocutory appeals under § 1292(b) as well. He said that while § 1292(b) is intended to be a flexible path for immediate appeal, it is an avenue that, in his experience, is not often used. The Third Circuit is most likely to take an appeal under § 1292(b) where it sees a controlling issue of law that could recur in other cases. Where the primary rationale for an interlocutory appeal under § 1292(b) is dispute resolution, Judge Ambro said that the court is much less likely to grant permission to appeal.

Judge Ambro also spoke about interlocutory appeals of class certification decisions under Federal Rule of Civil Procedure 23(f). He suggested that the Third Circuit is more likely to grant an appeal under Rule 23(f) if the district court has certified the class than it is where the district court has denied certification. Judge Ambro also reported that certifications under Rule 23(f) have declined significantly over the last three years as compared to the several previous years.

With regard to mandamus petitions, Judge Ambro said, “In my 15 years, I’ve seen mandamus work maybe once.” Mandamus is simply “not part of the culture” of the Third Circuit. Even compared to other types of interlocutory appeals, seeking mandamus stands out as particularly unlikely to be effective.

Litigators who do not often practice in appellate courts can easily underestimate the difficulty in obtaining permission for an interlocutory appeal. By underscoring these difficulties, Judge Ambro and Judge Bartle’s presentation offered an important strategic insight for lawyers practicing in the Third Circuit.

The Dangers of Relying on ECF Notices

Eighteen lawyers at two different law firms received ECF notifications of orders denying their client’s post-judgment motions. But the ECF notifications did not accurately describe the content of those orders. The attorneys relied on the incorrect descriptions in the ECF notifications and did not open the orders or realize that the post-judgment motions had been denied. As a result, they missed the 30-day deadline to appeal a $40 million judgment entered against their client. The Federal Circuit has now affirmed the trial court’s refusal to extend or reopen the deadline to appeal under Federal Rule of Appellate Procedure 4(a)(5) and (6).

This cautionary tale highlights a simple point: a lawyer should open and read every document received by ECF notification. Lawyers who rely on the clerk’s description in notifications do so at their own risk.

The Limits of Common Sense in Judicial Decisionmaking

Judge Posner’s recent opinion in Mitchell v. JCG Industries, Inc. enters a Twilight Zone of appellate decisionmaking that is truly bewildering. The issue was whether the FLSA requires poultry workers to be paid overtime for “donning and doffing” protective clothing at the beginning and end of their lunch breaks. Judge Posner answered that question, in part, by timing how long it took three of the court’s staff to don and doff the clothing. The parties had submitted conflicting testimony about this precise issue at the summary judgment stage. Nonetheless, Judge Posner, joined by Judge Kaanne, affirmed the grant of summary judgment in the employer’s favor based in part on the results of the in-chambers experiment.

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How to Appeal a Sanctions Order

Can a lawyer obtain appellate review of a sanctions order by piggy-backing on her client’s notice of appeal? The Court of Appeals for the First Circuit raised this question sua sponte in a decision issued on March 26, 2014, In re Joannie Plaza-Martinez.

A federal public defender appealed a sanctions order against her as well as her client’s sentence in a single notice of appeal. The notice of appeal was “unarguably proper” as to the client. Whether it was also proper as to the public defender’s appeal of the sanction order was “an unresolved jurisdictional question.”

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