CA1: notices of appeal can be born nullities and blossom into things that means something

Malloy v. WM Specialty Mortgage, No. 07-1026.  This case is the height of appellate practice nerdery.  After not responding to discovery requests or complying with various motions to compel, the District Court entered a really long order, which said “the court grants the present motion to the extent that it seeks dismissal of this action. This order is an interlocutory one; it will become final on December 8, 2006, unless, on or before that date, the plaintiffs show cause why this case should not be dismissed.”  Essentially, it put the clerk on autopilot.  But, the clerk entered a judgment, anyway.  The plaintiffs moved to vacate it, arguing that it was premature.  Before a ruling came out on the motion to vacate the plaintiffs filed a notice of appeal.  After the notice was filed the District Court denied the motion to vacate without comment.

The First concludes that although the notice of appeal was premature when filed, it became effective when the court denied the motion to vacate.  Therefore, the First has juriscition.

Anyway, on the merits, the First says that the discovery violations were “relatively severe” and there was no good excuse for them.   There was not much prejudice to the defendant, but that doesn’t matter: they were not honoring court orders.  Finally, 1) the First notes that the District court had tried everything, so lesser sanctions don’t matter; and 2) the plaintiffs had plenty of notice.

Comments

[Greg May]

Happens all the time out here in sunny California! The court of appeal out here goes out of its way to construe a notice of appeal every which way in order to "save" an appeal. It will even construe an appeal as a petition for writ of mandamus, on occasion.