Posted: January 29, 2016

Second Circuit Examines Appealability of Non-Final Orders

On December 9, 2015, the Second Circuit issued a decision in Rodriguez v. Anderson, 14-3828(L), dismissing an appeal because it was from a non-final order.

In Rodriguez, both the plaintiff and certain defendants appealed the denial of their motions for summary judgment. The Second Circuit dismissed their appeals, explaining, with respect to the plaintiff’s appeal:

The historic rule in the federal courts has always prohibited piecemeal disposal of litigation and permitted appeals only from final judgments. Nonetheless, under Rule 54(b), a district court can determine, in its discretion, if an immediate appeal is warranted in the interests of justice by issuing a certification along with an explanation for its determination. But the exercise of this discretion must follow the procedures set out by the Rule, and the requirement of an express determination that there is no just reason for delay has not been taken lightly by this Circuit.

This Court has held that it is possible to have jurisdiction over a non-final order even when the district court did not formally enter a Rule 54(b) certification:

When there is a judgment in a consolidated case that does not dispose of all claims which have been consolidated, there is a strong presumption that the judgment is not appealable absent Rule 54(b) certification. In highly unusual circumstances, a litigant may be able to overcome this presumption and convince us that we should consider the merits of the appeal immediately, rather than waiting for a final judgment.

But the exception identified in Hageman has been restricted to highly unusual circumstances, for example, where the district court clearly intended to enter a final judgment but inadvertently failed to do so.

The parties do not point to any such highly unusual circumstances in this case. . . . [The plaintiff] never sought Rule 54(b) certification, and she does not identify any evidence that the district court intended to but inadvertently failed to certify its order for immediate review. Indeed, it is clear from that order that the district court anticipated that trial would go forward on [the plaintiff’s] claims, and the court scheduled a trial date during the follow-up status conference. . . . We have repeatedly noted that the district court generally should not grant a Rule 54(b) certification if the same or closely related issues remain to be litigated.

Accordingly, [the plaintiff’s] appeal is dismissed. [The plaintiff] may file a motion in the district court requesting Rule 54(b) certification in order to reinstate her appeal, but we note that the district court is under no obligation to grant her request. Respect for the historic federal policy against piecemeal appeals requires that a Rule 54(b) certification not be granted routinely.

(Internal quotations and citations omitted).

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