Not too late for a 1915(B) certification

Let’s say that a trial court renders a judgment dismissing only some of a party’s claims, without designating the judgment as final under La. Code Civ P. art. 1915(B). The aggrieved party appeals anyway, and the court of appeal renders a judgment dismissing the appeal for lack of jurisdiction because the judgment needs but lacks an art. 1915(B) designation of finality. Can the appeal be salvaged?

Yes, it can, if the appellant acts promptly. That’s according to the Louisiana Supreme Court’s decision today in Interdiction of Gambino, 2020-312 (La. 6/3/20). In that case, the court of appeal rendered judgment dismissing the appeal on December 11, 2019. Eight days later, the district court signed an order designating the judgment appealed from as final under art. 1915(B). The Louisiana Supreme Court found that the district court’s order was “issued prior to finality of the dismissal of the appeal,” presumably because the order was issued within the 14-day time to apply for rehearing. The Court therefore held that the district court’s order “cured any jurisdictional defect in the appeal.” The Court reversed dismissal of the appeal, directed the court of appeal to supplement the record with the district court’s 1915(B) order, and consider the merits of the appeal.

My original title for this post was “Never too late for a 1915(B) certification,” but that would have been overstating Gambino. Had the time expired to apply for rehearing in the court of appeal before the district court’s 1915(B) order, the result might have been different. Arguably “prior to finality” could include not only the 14-day time to apply for rehearing, but also the 30-day time to apply to the Louisiana Supreme Court for a writ. See La. Code Civ. P. art. 2166. But once the 14-day time expires, the court of appeal cannot change its judgment. So if you ever find yourself in a similar spot, better to act while the court of appeal still has the power to act. (Of course, the best course is to nail down appellate jurisdiction before taking the appeal.)

Hat tips to Thomas Flanagan and Jeff Richardson for spotting this one.

Louisiana moving to Phase 2 re-opening

Earlier this afternoon, Governor John Bel Edwards announced the state’s movement to Phase 2 re-opening this Friday, June 5. To read the governor’s press release, follow this link. Today’s announcement does not include any information about legal deadlines that have been suspended since the onset of the COVID-19 emergency. We’ll probably find out about that on Thursday, when the governor plans to release updated executive orders officially moving the state to Phase 2. That, in turn, will likely dictate whether the Louisiana Supreme Court and courts of appeal continue their own suspensions of procedural deadlines.

Although the state is moving on to Phase 2, the City of New Orleans will remain at Phase 1 beyond June 5. That’s according to an announcement released today by Mayor Cantrell’s office, which you can read by following this link.

Direct link to La. 5th Circuit’s e-conference page

As readers of this blog know, the Louisiana Fifth Circuit held its May 2020 oral arguments by video conference, using the Zoom platform. The court’s web site has a page with general information for those wishing to attend a Zoom oral argument, but it’s hard to find (I couldn’t find a link to it from the home page). Not to worry, though; here’s a direct link to the court’s e-conference web page.

A reflection for Memorial Day

Here’s a reflection for Memorial Day. The dates have changed, and the language is sexist by today’s standards. But the rest of this seems as true today as it was in 1863. Renewing our commitments to end racism and uphold our Constitution are the appropriate things to do on Memorial Day.

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate—we can not consecrate—we can not hallow—this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here.

It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us:

—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion;

—that we here highly resolve that these dead shall not have died in vain;

—that this nation, under God, shall have a new birth of freedom;

—and that government of the people, by the people, for the people, shall not perish from the earth.

Abraham Lincoln (Nov. 19, 1863).

La. 5th Circuit guidelines for Phase 1 re-opening

Recently, the Louisiana Fifth Circuit issued a letter to attorneys and the general public about the court’s operations beginning May 18. This letter covers some of the same ground as the court’s letter to the LSBA president last week. These include the court’s handling of deadlines, access to the courthouse, social-distancing and other protective measures inside the courthouse, available alternatives for filing (including e-filing and fax-filing), and oral arguments during the next 90 days. To read or download the letter, follow this link.

The court has also recently issued a re-opening notice, spelling out the protocol for entry into the courthouse. To read or download this notice, follow this link.

Of costs and precedent in the U.S. 5th Circuit

Last week, the U.S. Fifth Circuit issued an interesting decision: City of San Antonio v., L.P., No. 19-50701 (5th Cir. May 11, 2020). Two takeaways from this decision:

First, the decision reminds us that the Fifth Circuit’s unpublished decisions are binding precedents if rendered before January 1, 1996. This rule is established by Weaver v. Ingalls Shipbuilding, Inc., 282 F.3d 357, 359 (5th Cir. 2002), interpreting 5th Cir. R. 47.5.3

Second, when a defendant has prevailed in a Fifth Circuit appeal, the defendant is entitled to an award of costs in the district court under Fed. R. App. P. 39(e), including the premium for the supersedeas bond, if the judgment is silent on costs. In this case, where the underlying judgment in the prior appeal was worth over $84 million, the bond premium was over $2 million. Under Rule 39(e)(3), the bond cost is taxable in the district court. In awarding the $2 million bond cost, the district court felt itself bound by an unreported Fifth Circuit decision, In re Sioux Ltd. Securities Litigation, No. 87-6167, 1991 WL 182578 (5th Cir. Mar. 4, 1991). The Fifth Circuit affirmed, holding that the district court applied the correct standard—meaning the district court has no discretion to deny awarding the cost of the appeal bond. The Fifth Circuit held that, in the prior appeal, the defendants were the prevailing party for purposes of Fed. R. App. P. 39(a)(3) because the Fifth Circuit’s prior order “vacat[ing]” the district court’s judgment was tantamount to a reversal. And because the Fifth Circuit did not “order otherwise” in the prior appeal, the default in Fed. R. App. P. 39(a)(3) applied, requiring taxation of costs against the appellee. And under the Fifth Circuit’s unreported precedent in Sioux Ltd., the appellants were entitled in the district court to an award of appeal costs under Rule 39(e)(3), including the appeal-bond premium.

La. 2nd Circuit extends deadlines to June 12

Like the other Louisiana courts of appeal, the Louisiana Second Circuit has extended its deadlines to implement Governor Edwards’s executive order 59 JBE 2020 (May 14, 2020)., which extended the suspension of legal deadlines until June 5, 2020. Under the Second Circuit’s order, filings that would have been due during the suspension period will be deemed timely if filed by June 12, 2020 for non-expedited matters, or by June 8, 2020 for expedited matters.

The order also states that the Second Circuit’s next oral argument will be scheduled for June 22 and 23, 2020, either in person or by video conference, with additional oral arguments to be scheduled for July 20 and 21, 2020.

At the time I wrote this blog post, the Second Circuit had not yet uploaded the order to its web site. But not to worry; you can download a copy by following this link.


p.s. (5:18 p.m.): Here’s a link to the order on the court’s web site.

La. 4th Circuit extends deadlines to June 8

Today the Louisiana Fourth Circuit issued an order extending its own deadlines in response to the COVID-19 emergency and the governor’s latest extension of legal deadlines. Under today’s order, any filings that otherwise would be due between March 12 and June 5, 2020 will be timely if filed no later than June 8. To download a copy of this order, follow this link.

La. 1st Circuit extends deadlines to June 8

Today the Louisiana First Circuit issued an order in response to the COVID-19 emergency and the governor’s latest extension of legal deadlines. Today’s order further extends the court’s own deadlines; anything that would have been due between March 12 and June 5, 2020 will be timely if filed no later than June 8. To download a copy of today’s order, follow this link. There’s also an announcement of the order on the First Circuit’s web site, which you can read by following this link.