Civil Procedure II

1. Civil Procedure II Professor Marc H. Greenberg

2. Appellate Review 28 U.S.C ��1291, 1292 address the jurisdiction of the US Courts of Appeal to hear appeals of final judgments of the district courts, and interlocutory orders or decrees in a variety of situations Liberty Mutual v. Wetzel � why does the Court hold that if an injunction had been granted by the District Court, an interlocutory appeal would be valid? Why isn�t the decision on liability enough? Why does the Court find a final judgment in Jetco?

3. Appellate Review What strategic and financial analysis needs to be conducted in evaluating whether to take an interlocutory or a final appeal? How should we define �finality� in cases involving multiple claims? Sears v. Mackey; Cold Metal v. United Engineering; Curtis-Wright v. General Electric; Panichella v. Pennsylvania � are the facts at issue separate and independent of the remainder of the litigation? If so, the decision regarding those facts may be appealable.

4. Appellate Review The Collateral Orders Doctrine: Cohen v. Beneficial � decisions relating to independent, collateral but nonetheless important issues, may be entitled to interlocutory review Under Seal v. Under Seal � identifies four factors needed to apply the Cohen rule. Most courts only apply the first three factors Lauro Lines v. Chasser; Van Cauwenberghe v. Biard, U.S. v. Ryan; U.S. v. Nixon; Richardson-Merrell v. Koller; In Re Cement all are examples of the collateral orders doctrine as applied. Do they all make sense?

5. Appellate Review Pragmatic Finality Brown v. U.S.; Budinich v. Becton; Gillespie v. U.S. Steel are all examples of this doctrine as applied � the courts approach the question of finality from a practical perspective � if enough of the core issues and facts in the case are resolved, minor remaining matters won�t block an appeal. Coopers v. Livesay � In 1978 the Supreme Court holds that a class-action certification decision is not proper subject for an interlocutory appeal; in 1998 it reverses course and adopts Rule 23(f) allowing such appeals.

6. Appellate Review Mandamus La Buy v. Howes Leather Co. � The Court of Appeal has jurisdiction to issue writs of mandamus to review interlocutory orders. Mandamus is appropriate here where the Court finds that the trial court�s practice of referring anti-trust cases to a master is an abdication of the judicial function � court congestion is not a valid basis for a reference Note the clear definition of when mandamus should be issued in the Schlagenhauf decision � has there been a clear abuse of discretion by the trial court

7. Appellate Review In re Cement Trust Litigation Note the 5 point 9th Circuit guidelines for issuance of a writ of mandamus � remember these are only guides Interlocutory Appeals under 1292(b), requiring the presence of a �controlling question of law� and pertaining to orders not otherwise appealable, are not often granted � courts note the exceptional nature of this kind of relief, in frequently denying it; see, e.g., Atlantic City v. General Elec. Injunctive relief � make sure you understand the three stages here: TRO, Preliminary Injunction, Permanent Injunction � are any of these subject to interlocutory appeal?