Stewart v. Donges

Citation915 F.2d 572
Decision Date17 September 1990
Docket NumberNos. 88-2454,88-3020,s. 88-2454
PartiesRobert STEWART, Plaintiff/Appellee, v. Donald DONGES, Defendant/Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 572

915 F.2d 572
Robert STEWART, Plaintiff/Appellee,
Donald DONGES, Defendant/Appellant.
Nos. 88-2454, 88-3020.
United States Court of Appeals,
Tenth Circuit.
Sept. 17, 1990.

Stephen French, Walz & French, Albuquerque, N.M. (M. Karen Kilgore, White, Koch, Kelly & McCarthy, P.A., Sante Fe, N.M., and Jerry A. Walz, Walz & French, Albuquerque, N.M., with him on the brief), for defendant/appellant.

Philip B. Davis, Albuquerque, N.M. (Richard Rosenstock, Chama, N.M. and Macon

Page 573

McCrossen, Albuquerque, N.M., with him on the brief), for plaintiff/appellee.

Before ANDERSON and EBEL, Circuit Judges, BROWN, District Judge. *

EBEL, Circuit Judge.

This case presents the question of whether the filing of an interlocutory appeal from the denial of defendant's motion for summary judgment based on qualified immunity divests the district court of jurisdiction in the absence of a determination by the district court that the appeal is either frivolous or dilatory. We hold that it does, and because there was no such determination by the district court, it lacked jurisdiction to proceed to trial in this matter as it did. We therefore vacate the district court's judgment in favor of plaintiff. Defendant also has by separate appeal raised the propriety of the district court's denial of his pretrial motion for summary judgment. We conclude that the district court correctly denied that motion. Accordingly, this matter must now be remanded to the district court for further proceedings.


Plaintiff-appellee Robert Stewart brought this action under 42 U.S.C. Sec. 1983 against defendant-appellant Donald J. Donges for alleged violations of his rights under the Fourth and Fourteenth Amendments arising from the defendant's arrest of plaintiff for a reported larceny. Plaintiff alleged that defendant, a detective in the Rio Rancho, New Mexico, Police Department, conducted an inadequate investigation of the reported crime, made material misrepresentations and omissions in his affidavit in support of the warrant application, and then arrested plaintiff without probable cause in violation of the Fourth and Fourteenth Amendments.

Defendant moved for summary judgment on the basis of qualified immunity. On August 12, 1988, the district court held a hearing on the motion. The district court denied that motion, holding that there were material facts in dispute. At that time, plaintiff's counsel engaged in the following colloquy with the court:

THE COURT: I am going to deny the motion for summary judgment. I think there are several issues of fact that have not been resolved, and I cannot resolve them at this time, at this stage of the proceedings, so I will deny the motion.

[PLAINTIFF'S COUNSEL:] Thank you, your Honor. Your Honor, with respect to the Mitchell v. Forsyth Doctrine and with respect to the fact that we are on your trailing docket for September 12, may we inquire at this time of the defendant's intention to take an appeal to the Tenth Circuit from your denial of summary judgment?

THE COURT: I think I have to grant them an interlocutory one.

[PLAINTIFF'S COUNSEL:] I agree you have to, but, what I want to know is if they plan on doing it. I think that such appeal, with all due respect, would be frivolous and the Tenth Circuit has counseled against frivolous appeals. I don't want to lose my setting on your docket....

THE COURT: If they want to appeal, we will talk about that. I am not going to force them to make a decision at this moment.

On August 15, 1988, the district court issued a written order denying defendant's summary judgment motion.

On September 6, 1988, the district court denied defendant's oral motion for a stay of the trial proceedings pending appeal:

This matter having come up on defendants' oral motion to vacate the current trial setting in this matter and to stay these proceedings pending resolution of defendant Donges' appeal to the Tenth Circuit Court of Appeals from the order denying his motion for summary judgment

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on qualified immunity grounds, the Court having considered the motion and having heard argument thereon and further being fully advised in the premises, finds it not to be well taken. Now therefore,

It is ordered that defendants' motion to vacate the trial setting and for stay be, and hereby is, denied.

On September 14, 1988, defendant filed his interlocutory appeal of the denial of summary judgment (No. 88-2454). After the notice of appeal was filed, the plaintiff evidently never sought to have the district court declare defendant's interlocutory appeal frivolous, nor did the defendant renew his request for a stay. Neither party sought to have this court stay the district court proceedings during the pendency of the appeal, and the case proceeded to trial before a jury. The district judge directed a verdict on the issue of liability in favor of the plaintiff at the end of the trial and submitted only the damages issue to the jury. The jury returned a verdict against defendant for $39,804 in compensatory damages and $47,000 in punitive damages. Defendant then took a second appeal to this court from that judgment (No. 88-3020), which was consolidated with appeal No. 88-2454. Thus, we have before us both the appeal from the denial of summary judgment as well as the appeal from the final judgment entered in the plaintiff's favor.


A. Divestiture of Jurisdiction (Appeal No. 88-2454)

As an initial matter, we must decide whether the defendant's interlocutory appeal from the denial of summary judgment based on qualified immunity divested the district court of jurisdiction to conduct a trial. We hold that it did, and that because the trial was conducted without jurisdiction, it was a nullity.

Our analysis of this question begins with the axiomatic premise that "a federal district court and a court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982) (per curiam). See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985).

Ordinarily the principle works the other way as well, and courts of appeals have no jurisdiction to review orders of the district court until there is a "final decision" from the district court under 28 U.S.C. Sec. 1291. However, the Supreme Court has held that there is a small class of decisions "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). For appeals of decisions falling within the collateral order exception, the Court has given 28 U.S.C. Sec. 1291 a "practical rather than a technical construction," and held that these types of interlocutory appeals ought to be treated as appeals from final decisions. Id. For example, in Abney v. United States, 431 U.S. 651, 657-62, 97 S.Ct. 2034, 2039-41, 52 L.Ed.2d 651 (1977), the Court held that the pretrial denial of a motion to dismiss an indictment on double jeopardy grounds falls within the " 'collateral order' exception to the final judgment rule first announced in Cohen." The Court explained that such rulings constitute the trial court's final rejection of the double jeopardy claim, the double jeopardy claim is independent of the criminal prosecution, and the defendant's right not to be exposed to double jeopardy might be irretrievably lost if pretrial appellate review were not available. Id. at 657-62, 97 S.Ct. at 2039-41.

In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), the Supreme Court relied on Abney and

Page 575

held that the denial of a defendant's motion for summary judgment based on qualified immunity was also a collateral order for which interlocutory appeal was available. The Court explained that a public official's entitlement to qualified immunity for actions not in violation of clearly established law "is an entitlement not to stand trial or face the other burdens of litigation. ... The entitlement is an immunity from suit rather than a mere defense to liability; and, like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id. at 526, 105 S.Ct. at 2815 (emphasis in original). The Court further reasoned that the district court's "denial of summary judgment finally and conclusively determines the defendant's claim of right not to stand trial." Id. at 527, 105 S.Ct. at 2816 (emphasis in original). And finally, the Court concluded that, like the immunity from trial implicated in a motion to dismiss an indictment based on double jeopardy, a motion for immunity from trial based on qualified immunity was "separate from the merits of the underlying action for purposes of the Cohen test." Id. at 528-29, 105 S.Ct. at 2817. Because an appeal from the denial of a motion for summary judgment based on qualified immunity satisfied all of the criteria of Cohen and Abney, the Court held that such appeals were from collateral orders and could be taken under 28 U.S.C. Sec. 1291.

Because the defendant's notice of interlocutory appeal in this case from the denial of his motion for summary judgment was timely filed and clearly proper under Mitchell, 2 we must next establish what the jurisdictional effect of that action was. We begin with the unassailable general proposition that the filing of a notice of appeal, whether from a true final judgment or from a decision...

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