Procedure

Delay in getting a return date for a writ application

Let’s say that you’re applying to a court of appeal for a supervisory writ. You know that, under Uniform Rule 4-3, the return date can’t be more than 30 days after notice of the trial court’s judgment. You also know that your writ application has to include the trial court’s return date order so that the court can determine whether the application is timely. So twenty days after notice of judgment, you file your notice of intent. But for whatever reason, the 30th day arrives without the judge’s having signed the return-date order. What do you do?

There’s a case for this situation: In re Gramercy Plant Explosion at Kaiser, 06-C-555 (La. App. 5 Cir. 7/31/06), 2006 WL 8453927. In Kaiser, the applicant’s counsel* filed the writ application with a conformed copy of the notice of intent and, in the jurisdictional statement, an explanation of the problem with getting the judge to sign the order. Here’s what the court said:

The judge who has been given notice of intention to seek writs shall immediately set a reasonable return date within which the application shall be filed in the appellate court. Uniform Rules-Courts of Appeal, Rule 4-3. However, relator’s timely notice of intention to seek writs was denied by the trial court. When a relator makes a timely and genuine attempt to obtain the judge’s signature on the order for which review is sought, the writ should not be refused. See, City of New Orleans v. Benson, 95-2436 (La.App. 4 Cir. 12/14/95), 665 So.2d 1202. Accordingly, the writ will be considered. 

Note, though, that you must show “a timely and genuine attempt to obtain the judge’s signature” on the return-date order. To do that, you’ll likely need a conformed copy of the notice of intent with proposed return-date order to show that you did your part timely. I’d also suggest filing the notice of intent soon enough that the judge actually has an opportunity to sign the return-date order within the 30-day period. Except for real emergencies, e-filing the notice of intent after 5 p.m. on the 30th day may not qualify as “a timely and genuine attempt to obtain the judge’s signature.”

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*Happened to be me.


New local rules in the La. 2nd Circuit

The Louisiana Second Circuit has a handful of new and amended local rules and that will become effective on June 1.

  • New Local Rule 16 sets an absolute 15-day deadline to a non-emergency writ application. That’s absolute as in “no extensions of time to file a response will be granted.” The new rule comes with the caveat that the court may “may adjudicate the application at any time after receipt, with or without the benefit of a response.”

  • Amended Local Rule 9 requires lawyers to show up for oral argument when oral argument is docketed. To be excused from appearing for oral argument, a lawyer must file a motion to waive oral argument. Failure to appear for oral argument without filing a timely motion to waive oral argument will cost you up to $200.

  • Amended Local Rule 4-1 implements a new schedule of fees charged by the clerk of court. The court’s web site says that the only change is in the numbers of copies required for various filings (generally the original and only one copy now required for some of the listed items).

  • Speaking of numbers of copies, new Local Rule 3-1 requires only an original plus one copy for “[a]ll filings, in appeals or writs ....” That’s if you file on paper. If you file electronically, “that filing will be deemed the original and a duplicate is not required.”

  • Finally, amended Local Rule 2-8 sets certain conditions on lawyers who borrow the record from the clerk of court. Under the amended rule, the exhibits remain at the courthouse—you have to go there to look at the exhibits. You have to return the record before or when you file your brief; the clerk won’t consider your brief filed unless you’ve returned the record. Also, you can’t borrow the record once the case is submitted except to prepare an application for rehearing to the Second Circuit or a writ application to the Louisiana Supreme Court; and then, you can only have the record for five days.

On that last item: it’s usually a good practice to make a copy of the record as soon as you get it, either on paper or scanned to PDF. Once you have your own copy, return the record promptly; don’t wait until your brief is due. That way, you reduce the risk of having your brief deemed untimely; plus you avoid the trouble of having to re-borrow the record for rehearing, LASC writ practice, and (if writs are granted) LASC merits briefing.


Ambiguously dated notice of judgment

Today the Louisiana Supreme Court reinstated an appeal that had been dismissed for untimeliness. Schiff v. Pugh, 2022-OC-210 (La. 4/12/22). The issue was doubt over either the date or adequacy of the notice of judgment.

Here’s what happened: In a legal-malpractice case, the trial court granted defendants’ motion for summary judgment. On November 25, 2020, the trial judge signed a final judgment dismissing the case. The bottom of the notice of judgment looked something like this:

Schiff notice of judgment

If notice of judgment was mailed on November 25, the deadline to move for new trial would have been December 7. See La. Code Civ. P. art. 1974. Counsel for both sides did not receive the notice until December 9, 2020. Two days after receiving the notice of judgment, plaintiff filed a motion for new trial. Plaintiff filed his motion for appeal on March 9, 2021, presumably within 60 days after denial of new trial but more than 60 days after the December 7 deadline to move for new trial.

On appeal, the Fourth Circuit issued a rule to show cause why the appeal should not be dismissed as untimely. In response, the plaintiff-appellant made two arguments: first, that the purported notice of judgment was signed by the judge’s law clerk rather than a deputy clerk of court; second, that the purported notice of judgment did not explicitly state that it was actually mailed on November 25, and in fact was not received by counsel until December 9. A majority of the Fourth Circuit panel dismissed the appeal, with Judge Ledet dissenting. The Louisiana Supreme Court granted the plaintiff’s writ application, vacating the Fourth Circuit’s judgment and reinstating the appeal. The LASC found that "the grounds cited by the court of appeal for dismissal of the appeal are not free from doubt," and therefore resolved the doubt in favor of maintaining the appeal.

While this chapter of the story has a happy ending for the appellant, we can all benefit from the appellant’s experience. My suggestion: when there’s uncertainty or ambiguity over when a notice of judgment was mailed or transmitted, always resolve the doubt conservatively. Assume the notice was sent on the same day that the judge signed the judgment unless somethine else unambiguously indicates a later date for sending the notice. 


Defendant’s right to appeal summary judgment

Here’s a case that appears destined for the Louisiana Supreme Court. A simplified version of the facts: Plaintiff sues Defendant 1 and Defendant 2. Defendant 1 moves for and is granted a summary judgment dismissing plaintiff’s claim against it. Under La. Code Civ. P. art. 966(G), one effect of the summary judgment is to deprive Defendant 2 of its defense that Plaintiff’s damages were caused in whole or in part by Defendant 1’s negligence. Can Defendant 2 appeal the summary judgment if Plaintiff fails to appeal? In a December 1, 2021 decision, the Fourth Circuit dismissed Defendant 2’s appeal, holding that Defendant 2 cannot appeal the summary judgment and cannot argue Defendant 1’s negligence at trial. Amedee v. Aimbridge Hospitality LLC, 2020-CA-0590 (La. App. 4 Cir. 12/1/21). In its opinion, the Fourth Circuit recognized the anomaly in this result, but found it to be compelled by the res judicata effect of the plaintiff’s failure to appeal the judgment and the language of Article 966(G). The Fourth Circuit also recognized a “Split Among the Circuits” on this issue. Slip Op. at 4.


Judgment signed by successor judge

With the New Year just getting started, here’s an issue to look out for if the New Year brings a new judge to the case.

On December 3, 2020, a pro tempore judge in a district court presided over a hearing of defendants’ motions for summary judgment and granted both motions. The written judgment was signed on January 5, 2021 by the newly elected successor judge—not the same judge who heard and granted the motions on December 3. The plaintiff appealed.

In its original opinion, the court of appeal dismissed the appeal without prejudice for lack of an appealable judgment. Relying on caselaw interpreting La. Code Civ. P. art. 1911, the court of appeal interpreted Article 1911 to require that a final judgment be signed by the same judge who presided over the case. Since the judgment was not signed by the judge who presided over the summary-judgment hearing, the court of appeal held that it was invalid and unappeable. Payne v. St. Bernard Parish Hosp. Serv. Dist., 2021-CA-0135 (La. App. 4 Cir. 10/13/21)

The defendants–appellees applied for rehearing. The court of appeal granted rehearing, vacated its earlier judgment, found that the district court’s judgment was valid after all, and went on to decide the merits of the appeal. The defendants argued, and the court of appeal agreed, that La. R.S. 13:4209(B) authorizes a successor judge to sign "a judgment which conforms with the judgment rendered” by the former judge “if the judge who rendered the judgment dies, resigns, or is removed from office, or if his term expires before signing the judgment in the case ....” Payne v. St. Bernard Parish Hosp. Serv. Dist., 2021-CA-0135 (La. App. 4 Cir. 12/1/21). Judge Ledet dissented, citing cases requiring the successor judge to explicitly state that she or he was complying with La. R.S. 13:4209.


Supervisory writs in First Amendment cases

When we apply to the court of appeal for a supervisory writ, our first task is to persuade the court to exercise its supervisory jurisdiction to consider the application’s merits. To do this, we often argue either that the trial court’s judgment causes irreparable injury (meaning an injury that cannot be corrected on appeal after final judgment) or that the case meets the three criteria of Herlitz Contruction Co. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La. 1981): (1) the trial court’s judgment is arguably incorrect; (2) reversal would terminate the litigation; and (3) there is no dispute of fact to be resolved.

If you represent a defendant with a First Amendment defense, that defense may be another way to persuade the court to decide the merits. The Louisiana Fourth Circuit said so explicitly in Roppolo v. Moore, 93-2361, p. 2 (La. App. 4 Cir. 7/27/94), 644 So. 2d 206, 208*:

This Court believes that the exercise of its supervisory powers should be liberally invoked where First Amendment freedoms are at stake. The exercise of First Amendment rights should not be discouraged by the threat of harassing lawsuits.

In support of its stance, the Fourth Circuit cited the Louisiana Supreme Court’s decision in Mashburn v. Collin, 355 So. 2d 879 (La. 1977)Mashburn contains the following quotable quotes:

In cases affecting the exercise of First Amendment liberties, proper summary judgment practice is essential. [Id. at 890.]

. . .

Summary adjudication may be thought of as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press. [Id. at 891.]

Two other cases worth a look in this situation are Schaefer v. Lynch, 406 So. 2d 185 (La. 1981), and Batson v. Time, Inc., 298 So. 2d 100 (La. App. 1 Cir. 1974). In these cases, the Louisiana Supreme Court and the Louisiana First Circuit respectively granted writs to decide the merits of First Amendment issues raised in the writ application. In Schaefer, the Louisiana Supreme Court granted the writ “to determine whethe trial on the merits in this libel action would infringe on the rights of freedom of speech and freedom of the press guaranteed under the First and Fourteenth Amendments of the United States Constitution.” 406 So. 2d at 187. In Batson, the First Circuit suggested that a case involving a First Amendment defense also involves the prospect of irreparable injury. After discussing the First Amendment arguments raised by the defendants and applicants but finding that it lacked appellate jurisdiction, the First Amendment considered the merits under its supervisory jurisdiction because “adequate remedy does not exist by appeal, and ... irreparable injury might otherwise result.” 298 So. 2d at 106.

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* Disclosure: Roppolo was one of my early successes.


For e-filers, a cautionary tale

Here is “a cautionary tale for every attorney who litigates in the era of e-filing.” In federal court, a defendant in a personal-injury suit filed a motion for summary judgment. The court’s e-filing system sent an email to the plaintiff’s counsel with the docketing notice and a hyperlink to the defendant’s motion; this email constituted service of the motion. Unfortunately for the plaintiff and his attorney, the attorney’s email system sent that email to a spam folder instead of the attorney’s in-box. Result: the court granted the summary judgment as unopposed and, later, denied the plaintiff’s Rule 59 motion. The U.S. Fifth Circuit affirmed. The Fifth Circuit reasoned that the email glitch was not grounds for relief under Fed. R. Civ. P. 59 because plaintiff’s counsel was in the best position to make sure that his own email system was functioning properly. The Fifth Circuit also suggested that the plaintiff’s counsel could have learned about the motion by monitoring the district court’s PACER docket. Rollins v. Home Depot USA, Inc., No. 20-50736 (5th Cir. Aug. 9, 2021).


The U.S. Fifth Circuit’s “Rule of Orderliness”

Two weeks ago, the U.S. Fifth Circuit issued an interesting decision about the court’s “rule of orderliness,” which is another name for law of the circuit: Douglas v. Nippon Yusen Kabushiki Kaisha, No. 20-30382 (5th Cir. Apr. 30, 2021). The issue was one for civil-procedure fans: the proper framework for analyzing personal jurisdiction under the Due Process clause of the Fifth (as opposed to Fourteenth) Amendment. Long story short: the panel agreed that the plaintiffs’ argument, but reluctantly followed circuit precedent, which led to a contrary result. In a concurring opinion, Judge Elrod (joined by Judge Willett) suggested that "[t]his case presents a good vehicle for our en banc court to correct our course ....”

For lawyers practicing in the Fifth Circuit, this case is a good lesson on how binding circuit precedent is in the Fifth Circuit. If you’re looking to overrule circuit precedent, you might save time by move for en banc hearing in the first instance under Fed. R. Civ. P. 35.

Hat tip to my colleague Martin Stern for spotting this case.


Federal appellate jurisdiction in abstention cases

Under 28 U.S.C. § 1447(d), “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ....” Let’s say that plaintiff sues defendant in Louisiana state court, the defendant removes the case to federal court, and the plaintiff moves for remand. The district court finds that it has subject-matter jurisdiction, but it grants the remand anyway by applying an abstention doctrine (in this instance, Burford). The defendant appeals. Does the U.S. Fifth Circuit have appellate jurisdiction to review the abstention-based remand?

According to a decision released yesterday, the answer to the appellate-jurisdiction question is “yes.” Grace Ranch, LLC v. BP America Production Co., No. 20-30224, at 10–14 (5th Cir. Feb. 24, 2021). The Fifth Circuit concluded that the barring of review under § 1447(d) applies only to removals described in § 1447(c), namely remands for defects in the removal procedure or for lack of subject-matter jurisdiction. Since a remand based on abstention fits neither category, it can be reviewed.

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p.s. 26 Feb. 2021: The Fifth Circuit released an updated version of its opinion today. To download a copy of the revised opinion, follow this link. The discussion of appellate jurisdiction starts on page 11.