Zayas-Green v. Casaine

• Decision Date: 09 February 1990
• Docket Number: ZAYAS-GREE,Nos. 88-2117,P,DAVILA-DIA,D,88-2118,s. 88-2117
• Citation: 906 F.2d 18
• Parties: Joselaintiff, Appellee, v. Sergio CASAINE, Defendant, Appellant. Joselaintiff, Appellee, v. Sergio CASAINE, etc., et al., Defendants, Appellees. Appeal of Estebanefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 18

906 F.2d 18

16 Fed.R.Serv.3d 1297

Jose ZAYAS-GREEN, Plaintiff, Appellee, v. Sergio CASAINE, Defendant, Appellant.

Jose ZAYAS-GREEN, Plaintiff, Appellee, v. Sergio CASAINE, etc., et al., Defendants, Appellees.

Appeal of Esteban DAVILA-DIAZ, Defendant, Appellant.

Nos. 88-2117, 88-2118.

United States Court of Appeals First Circuit.

Heard Feb. 9, 1990.

Decided June 19, 1990.

Dennis A. Simonpietri, San Juan, P.R., and Gilberto Mayo-Pagan, Hato Rey, P.R., with whom Hector Rivera Cruz, Secretary of Justice, Bayamon, P.R., Jorge Perez Diaz, Sol. Gen., Ramirez & Ramirez and Mayo & Mayo, Hato Rey, P.R., were on briefs, for defendants, appellants.

A.J. Amadeo Murga, Hato Rey, P.R., for plaintiff, appellee.

Before CAMPBELL, Chief Judge, SELYA and CYR, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

In this section 1983 damages action against two Puerto Rico government officials, the district court ruled that defendants, having had two years to file dispositive pretrial motions, would receive no further time to file such motions. The result of this unappealed order, coupled with defendants' prior inaction, was to prevent them from moving to dismiss, or for summary judgment, on qualified immunity grounds prior to trial. The case proceeded to trial, with the jury finding for plaintiff and awarding substantial damages. Following the jury verdict, defendants moved for a judgment notwithstanding the verdict ("JNOV"), in part on qualified immunity grounds. The district court denied defendants' JNOV motion, but ordered a new trial on the issue of compensatory damages. Defendants now bring this interlocutory appeal from that post-trial ruling and order, and plaintiff/appellee protests that we lack appellate jurisdiction.

We hold that by failing to raise the issue of qualified immunity originally in a timely pretrial motion or appeal, defendants have waived their right to bring an appeal at this time, prior to final judgment (although not to bring an appeal after final judgment). Accordingly, we dismiss.

I.

The principal facts relevant to our disposition of this appeal are as follows:

1. On April 25, 1985, plaintiff/appellee Jose Zayas Green filed a civil rights action for damages against defendant/appellant Sergio Casaine, an officer of Puerto Rico Marine Management, Inc. ("PRMMI"), and defendant/appellant Esteban Davila, the Executive Director of the Puerto Rico Maritime Shipping Authority ("PRMSA"). ¹ The complaint alleged that Casaine and Davila had violated plaintiff's constitutional rights by dismissing plaintiff from his position at PRMMI solely for political reasons.

2. On July 31, 1985, Davila filed an answer to plaintiff's complaint, in which he raised numerous defenses, including that of qualified immunity. ²

3. Starting in October 1985, the parties engaged in extensive discovery regarding the allegations in plaintiff's complaint. Such discovery included the exchange of numerous interrogatories as well as the taking of depositions of all three parties.

4. At a pretrial conference on September 12, 1986, the district court allowed the parties until November 15, 1986, to file any dispositive motions prior to trial.

5. On November 17, 1986, Davila filed a motion to dismiss for failure to state a claim. ³ In his motion, Davila did not rely on the defense of qualified immunity, instead choosing to argue solely that plaintiff had failed to state a cause of action. Davila stated that the reason he was withholding a qualified immunity argument was that "if the Court grants this motion it would be unnecessary to file the more complex motion for Summary Judgment based on qualified immunity." Davila requested, however, that in the event the district court rejected his motion to dismiss, the court allow Davila until December 17, 1986, to file a motion for summary judgment based on qualified immunity.

6. On November 24, 1986, Casaine requested additional time to file dispositive motions prior to trial. The district court granted Casaine "until December 8, 1986 to file all dispositive motions. No further extensions shall be granted."

7. On December 31, 1986, the district court amended its earlier ruling, allowing Casaine until January 20, 1987, to file all dispositive motions prior to trial. The court also allowed plaintiff until January 20, 1987, to file his opposition to Davila's November 17 motion to dismiss.

8. On January 20, 1987, despite the court's earlier order, Casaine requested an additional 30 days to file dispositive motions, and Davila renewed his request for an extension of 30 days "after the notification of this Court [sic] decision on codefendant Davila's motion [for] partial judgment on the pleadings...." A magistrate summarily granted both requests. That same day, plaintiff filed his opposition to Davila's November 17 motion to dismiss.

9. On May 4, 1987, the district court denied Davila's motion to dismiss and set a trial date of August 25, 1987. The court also ruled that "[n]o further dispositive pretrial motions shall be entertained by the Court. The parties have had almost two years to do so and any other filings of this nature would set back this case." Neither defendant appealed from this order.

10. On May 15, 1987, Davila filed a motion to reconsider the court's May 4 order prohibiting any more dispositive pretrial motions. Davila complained in part that the court's May 4 order "obviate[d]" the magistrate's earlier order granting Davila's January 20 motion for an extension of time. Casaine filed a similar motion on May 20, 1987.

11. On June 1, 1987, the district court denied defendants' motions for reconsideration.

12. The trial began on August 25, 1987. On that day, Casaine filed an answer to plaintiff's complaint, in which Casaine asserted the defense of qualified immunity.

13. On August 31, after plaintiff rested his case, defendants moved for a directed verdict in part on the ground that they were entitled to qualified immunity as a matter of law. The district court denied their motion on the merits. At the end of the case, defendants renewed their motion for a directed verdict, which the district court again denied on the merits.

14. On September 3, 1987, the jury found for plaintiff and against Casaine and Davila. The jury awarded $400,000 in compensatory damages and $25,000 in punitive damages.

15. The parties filed various post-trial motions. On August 18, 1988, the district court denied defendants' motion for a JNOV, but granted in part defendants' motion for a new trial, finding "that the evidence in the record does not support the excessive amount awarded as compensatory damages," and ordering a new trial on the issue of compensatory damages only.

16. Defendants then brought the instant appeal. In an order dated December 23, 1988, this court ruled that "[w]e make no final determination as to appellate jurisdiction at this time, but rather leave that matter for further briefing by the parties in their appellant and appellee briefs."

II.

As a preliminary matter, we must decide whether we have appellate jurisdiction to entertain defendants' appeal from the district court's August 18, 1988 order, which denied defendants' motion for a JNOV but granted their motion for a new trial on the issue of compensatory damages only. We hold that we lack jurisdiction, thereby dismissing defendants' appeal.

Section 1291 of title 28 provides courts of appeals with jurisdiction over "all final decisions of the district courts." 28 U.S.C. Sec. 1291. A "final decision" is generally considered a decision that " 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Van Cauwenberghe v. Biard, 486 U.S. 517, 108 S.Ct.1945, 1949, 100 L.Ed.2d 517 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). Since, by definition, interlocutory orders are not final decisions, litigants generally cannot appeal such orders until after the entry of judgment. See In re Continental Investment Corp., 637 F.2d 1, 3 (1st Cir.1980) (stating "the general rule that interlocutory orders are not appealable in federal courts").

This final judgment rule serves many interrelated purposes. It furthers the "strong congressional policy against piecemeal review," id. (quoting United States v. Nixon, 418 U.S. 683, 690, 94 S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974)), and it preserves "the independence of the district judge." Van Cauwenberghe, 108 S.Ct. at 1949 n. 3 (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981)). In addition, the rule prevents litigants from engaging in certain stalling tactics, the sole purpose of which is to increase litigation costs and wear down one's adversary. See id.

Applied to the present case, it is hornbook law that the final judgment rule ordinarily prohibits an immediate appeal from an interlocutory order denying a JNOV but granting a new trial. 9 C. Wright and A. Miller, Federal Practice and Procedure Sec. 2540, at 616 (1971) ("If the trial court denies the motion for judgment but grants the motion for a new trial, the order, as is true of orders for a new trial generally, is not appealable and the new trial will proceed."); see, e.g., Wagner v. Burlington Industries, Inc., 423 F.2d 1319, 1321 (6th Cir.1970) ("Even though the judgment of the District Court determined the issue of defendant's liability, there cannot be an appeal from that judgment or order because the granting of a new trial on the issue of damages renders the order interlocutory and nonappealable."). That the district court erred in its ruling does not alone constitute sufficient grounds for appealing prior to the end of the new trial. This is so even if the district court committed a clear error of law. See Van Cauwenberghe, 108 S.Ct. at 1953 n. 7 (refusing "to fashion an exception from the general rule of nonappealability for what petitioner describes as 'facially...