Procedure

New local rules at the La. 5th Circuit

The Louisiana Fifth Circuit has adopted two new local rules, both effective June 1, 2024.

Under new Local Rule 15, the court will have discretion to give expedited consideration to tutorship and interdiction cases.

New Local Rule 16 governs exceptions to the norm of three-judge panels. Here’s the full text of the new rule:

RULE 16: PANELS

In accordance with Louisiana Constitution, Article V, Section 8(A), the Fifth Circuit Court of Appeal shall sit in panels of three judges, except as follows:

A. A five-judge panel is convened in accordance with Louisiana Constitution, Article V, Section 8(B).

B. A five-judge panel is convened in cases arising under Chapter 9 of Title 18 of the Louisiana Revised Statutes [election contests and challenges] unless an en banc panel is required by law.

C. A five-judge panel, and, if necessary, an en banc panel, is convened if a majority of the judges sitting in a case cannot concur to render judgment.

D. An en banc panel is convened when precedent of the court is to be abrogated.

E. A panel of more than three judges may be convened in all other cases as the court deems necessary. 


Timeliness of writ application in court of appeal

Here’s a citable decision released today by the Louisiana Supreme Court on the timeliness of a writ application filed in a Louisiana court of appeal. Since the decision is (a) short, and (b) light on facts, I’ll just quote it verbatim:

PER CURIAM

Granted. Although the trial court set the return date more than thirty days from the date of the ruling, the court has authority to extend the deadline under Rule 4-3. See Barnard v. Barnard, 96-0859 (La. 6/24/96), 675 So.2d 734. Relator’s application, filed within the time limit authorized by the trial court, is timely.

Accordingly, the application is remanded to the court of appeal for consideration on the merits. 

Boyer v. Boyer, 2024-CC-00372 (La. 5/7/24). Caution: while I don’t know the facts of this case, my experience is that this works only when the writ applicant files its notice of intent within the original 30-day period in Uniform Rule 4-3. In those instances, when the trial court sets a return date beyond the 30-day period, the courts should treat the order as an implied motion and order to extend the return date, which Rule 4-3 authorizes.

For an excruciatingly detailed discussion on the timely filing of writ applications in the court of appeal, see my 20-year-old La. Bar Journal article on that topic.


Time to oppose an LASC writ application: 15 30 days

Here’s a rule change I just found out about.1 Before April 1, 2024, the time to file an opposition to a writ application in the Louisiana Supreme Court was 15 days after filing of the writ application. But effective April 1, Rule X § 6 now gives the opposing party 30 days to file an opposition. This expanded time to file an opposition comes with the caveat that “[n]o extensions of this deadline shall be granted unless the party can demonstrate through clear and convincing evidence that the delay was the result of circumstances beyond its control.” An official comment explains the LASC’s rationale for this amendment:

The court is cognizant that in many cases, the prior fifteen-day opposition deadline was too short for opposing parties to adequately respond to issues raised in the application, which has resulted in the filing of motions for extension of time. While the court encourages the filing of oppositions, motions for extension can delay consideration and affect the court’s ability to rule upon applications in a timely fashion. To balance these competing concerns, the fifteen-day opposition deadline has been increased to thirty days, with the condition that no extensions will be permitted. The only exception to this prohibition is for truly exceptional situations where the party can demonstrate through clear and convincing evidence that the inability to file the opposition timely was due to circumstances beyond the party’s control. Circumstances within a party’s control, such as errors in calendaring the delay or conflicting obligations, shall not constitute a basis for extension under this rule.  

__________

1 Hat tip to my colleague Martin Stern for this.


When delay equals “effective denial” of a preliminary injunction

A couple of weeks ago, the U.S. Fifth Circuit issued an interesting judgment granting mandamus: In re Fort Worth Chamber of Commerce, No. 24-10266 (5th Cir. Apr. 5, 2024). For appellate lawyers and anyone else practicing in the federal system, it’s worthwhile reading. The case raised issues of both the Fifth Circuit’s jurisdiction over a purported appeal and the district court’s jurisdiction after the puported appeal.

Here’s the skinny version of what happened: The Chamber sued for a preliminary and permanent injunction against a rule promulgated by Consumer Protection Financial Bureau. Claiming that time was of the essence, the Chamber filed several pleadings seeking an expedited hearing of its request for a preliminary injunction, citing the short time before the new rule would take effect. Rather than rule on the merits of the preliminary injunction, the district court invited the Bureau to file a motion to transfer the case to D.C., which the Bureau did. Before the district court ruled on the motion to transfer, the Chamber appealed the “effective denial” of the preliminary injunction. Three days later, the district court granted the Bureau's motion to transfer.

The Chamber petitioned the Fifth Circuit for a writ of mandamus vacating the transfer. A 2–1 majority (Judges Willett and Oldham) granted the writ. Judge Higginson dissented.

The case raised two issues of appellate procedure. First, without an explicit ruling on the preliminary injunction, did the district court “effectively deny” the preliminary injunction, giving the Chamber the right to appeal? (See 28 U.S.C. §1292(a)(1), allowing appeal of an interlocutory order granting or denying a preliminary injunction.) This issue split the panel. The majority held that, under the case’s particular facts, the district court’s failure to hold an expedited hearing of the motion for preliminary injunction constituted an effective denial of a preliminary injunction. The majority accepted the Chamber’s argument that, because of the case’s urgency (the imminent effective date of the new rule and cost of compliance with it), the district court’s failure to grant the Chamber’s request for an expedited hearing of the preliminary injunction constituted an effective denial.  Judge Higginson dissented on that issue, arguing that the urgency for a ruling on the preliminary injunction was “a fiction.” Slip Op. at 25.

Once the majority concluded that the Chamber had the right to appeal, the rest was easy. Once the Chamber took a valid appeal, the district court had no jurisdiction to “alter the status of the case as it rests before the Court of Appeals.” Slip Op. at 10. The majority reasoned that the transfer most certainly altered the status “because a transfer would frustrate our ability to provide meaningful relief because we would have no case to review.” Id.

There was still the question of whether the Chamber met the high threshold for mandamus. That part of the majority’s opinion was relatively short. Here’s the money quote:

Facing an uptick in inter-circuit transfer orders, we take this opportunity to clarify that once an appealable order is lodged before our court, district courts lack jurisdiction to transfer a case because it stymies our ability to review. [Slip Op. at 12–13.]

Just one editorial comment: Is the right to a writ of mandamus “clear and indisputable” when the court of appeals splits 2–1 on whether mandamus is appropriate?


If you want expedited consideration of your writ application

If you want expedited consideration of your writ application, you should file it as soon as possible. You shouldn't exacerbate or (worse) create the emergency by waiting until the last possible day to file. That’s a matter of courtesy and professionalism. It’s also a matter of self-interest: the last thing you want to do as a writ applicant is antagonize the court by dragging your feet on filing and then insist on an immediate ruling by the court.

In some Louisiana courts, it’s also the rule. A few days ago, the Louisiana Fifth Circuit adopted Local Rule 14. The new rule requires a writ application seeking emergency consideration to be “be filed in this court as soon as possible after the lower court ruling but not more than ten days after issuance of the notice of the ruling.” Failure to do so without good cause may be grounds for denial of emergency consideration.”

Since the beginning of this year, the Louisiana Second Circuit has had a similar rule, except that the time to file is 15 days instead of 10 days.  See La. 2 Cir. Local Rule 17. Both the Second and Fifth Circuits appear to be following the Louisiana Supreme Court’s example. Under the LASC’s Rule X § 5(a)(2), “An application seeking expedited review of a judgment of the court of appeal as ... shall be filed as soon as possible after the court of appeal’s disposition and in no event more than ten days after the mailing of notice of judgment by the court of appeal.” The penalty for failure to comply “may be grounds for denial of expedited review (with review in regular course if the application is otherwise timely under subsection (a) (1)) and/or imposition of sanctions against the party seeking expedited review.”

But regardless of whether the court you’re filing in has a rule like this, it’s just good practice to file your writ application as soon as possible if you need expedited consideration. The court will appreciate your effort to give them as much time as you can to consider your application. That good will should enhance your chances of winning. At the very least, you’ll avoid sabotaging your own writ application by antagonizing the court.


Writ application does not suspend appeal delay

A recent decision by the Louisiana First Circuit provides two lessons:

  1. A writ application following denial of a motion for new trial does not suspend the time to take an appeal.
  2. The delay to take an appeal starts from denial of new trial, whether that denial comes from the trial court or an appellate court.

Phillips v. Exxon Chem. La., LLC, 2022-CA-1290 (La. App. 1 Cir. 6/23/23), — So.3d —, 2023 WL 4140759. Applying these lessons, the First Circuit dismissed an appeal as untimely. Here’s the Philips timeline:

  • May 5 2021: Following a jury trial, the trial court signed a judgment on a defense verdict.
    Plaintiffs then filed a motion for JNOV or new trial.
  • July 12, 2021: The trial court signed a judgment denying JNOV but granting a new trial.
    Defendant then applied to the First Circuit for a supervisory writ.
  • March 17, 2022: The First Circuit granted a supervisory writ, vacated the trial court’s judgment in part on the new-trial issue, and rendered a judgment denying new trial.
    Plaintiffs then applies to the Louisiana Supreme Court for a supervisory writ to review the court of appeal’s judgment
  • June 8, 2022: The LASC denied plaintiffs’ writ application.
  • July 5, 2022: Plaintiffs filed a motion in the trial court for devolutive appeal of the May 5, 2021 judgment.

In dismissing the appeal as untimely, the First Circuit cited several cases holding that the filing of a writ application does not suspend running of the delay to take an appeal. The First Circuit held that “the delay for an appeal runs from the denial of the motion for new trial, whether that ruling is by the trial or appellate court, and like an application for supervisory writ, an application for certiorari does not suspend the running of the delay for an appeal.” Phillips, p. 10.


Preserving denial of summary judgment in federal court

Let’s say you represent a defendant in federal court. You file a motion for summary judgment, which is denied (erroneously, in your opinion). You proceed to trial and lose. To preserve for appeal the denial of summary judgment, do you have to re-urge the issue via a post-trial motion for judgment as a matter of law under Fed. R. Civ. P. 50?

Last month, the U.S. Supreme Court answered that question, making a distinction between motions involving factual issues and those involving purely legal issues. Dupree v. Younger, No. 22-210 (May 25, 2023).

If the summary-judgment motion depends on facts developed in discovery, then the losing party must re-urge the issue after trial through a post-judgment motion under Rule 50. The rationale is that the facts developed pre-trial (e.g. in depositions, affidavits, admissions, etc.) are superseded by the facts developed at trial. "So after trial,” the Supreme Court explained, “a district court's assessment of the facts based on the summary-judgment record becomes ancient history and is not subject to appeal." Slip op. at 5 (cleaned up). Thus, to be preserved for appeal, the issue must be re-urged in a Rule 50 motion, with the trial record superseding the summary-judgment record.

On the other hand, if the issue raised in the summary-judgment motion is “purely legal,” meaning that it “can be resolved without reference to any disputed facts,” then there is no need to re-urge the issue in a Rule 50 motion to preserve it for appeal.  Id. at 6. The rationale is that, unlike the factual record, the law is the same after trial as it is before. Writing for the Court, Justiice Barrett explained the difference:

[A]n appellate court’s review of factual challenges after a trial is rooted in the complete trial record, which means that a district court’s factual rulings based on the obsolete summary-judgment record are useless. A district court’s resolution of a pure question of law, by contrast, is unaffected by future developments in the case. From the reviewing court’s perspective, ther is no benefit to having a district court reexamine a purely legal issue after trial, because nothing at trial will have given the district court any reason to question its prior analysis. We therefore hold that a post-trial motion under Rule 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment.
[Slip op. at 6.]


When can a discovery order be appealed?

Normally, a discovery order is not appealable because it is an interlocutory judgment, not a final judgment. Therefore, the only avenue for review is by application for a supervisory writ. But a recent decision by the Louisiana First Circuit reminds us of an exception to this rule: when the order involves discovery from a non-party to the case, it can be appealed. The rationale is that, as far as the non-party is concerned, the order is a final judgment because it resolves the entire dispute involving the non-party. Hughes v. Capital City Press, LLC d/b/a The Advocate, 2022-1133, p. 4 n. 3 (La. App. 1 Cir. 6/2/23), — So.3d —, 2023 WL 3861840. Other cases from the First, Third, Fourth, and Fifth Circuits say the same thing:

Although the appellant in these cases is usually the non-party from whom the discovery is sought, the First Circuit (in Hughes) and the Fourth Circuit (in Cannelside) have applied it to consider appeals by a party seeking discovery from a non-party.


La. 2nd Circuit rule for expedited writ applications

Common sense says that, if you file a writ application seeking expedited consideration, you should file as soon as you can. The longer you take to file, the more of a time crunch you’re imposing on the court of appeal, which the court’s judges won’t appreciate.

Earlier this year, the Louisiana Second Circuit adopted a local rule codifying that bit of common sense. Local Rule 17 requires a writ application seeking expedited consideration to be filed “as soon as possible after the trial court’s ruling, and in no event later than fifteen days from the applicable Time to File provision of U.R.C.A. 4-3, relating to civil and criminal writ applications.” In the accompanying comment, the court explains the rationale for the rule, a rationale applicable to any writ application in any court seeking expedited consideration:

This Court’s ability to address issues raised in writ applications requesting expedited review can be significantly impaired when applicants elect to wait until the last day of the thirty-day period for seeking review to request expedited consideration. Such late-filed requests often create unnecessary emergent circumstances which place a significant burden on this Court.

In adopting this local rule the Second Circuit appears to be following the Louisiana Supreme Court’s example. The LASC has a 10-day rule for writ applications seeking expedited consideration. (See this 10 Aug. 2022 blog post about that.)

Obviously, you shouldn’t antagonize the judges if you want them to look favorably on your writ application. Instead, enhance your ethos by showing the judges that you value their time.