No IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT : : : : : : : : : : : : :

Transcription

1 No IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT LIBERTARIAN PARTY OF OHIO, ET AL., v. Appellants-Plaintiffs, JON HUSTED, IN HIS OFFICIAL CAPACITY AS OHIO SECRETARY OF STATE, v. Appellee-Defendant, THE STATE OF OHIO, Appellee-Intervenor- Defendant. On Appeal from the United States District Court for the Southern District of Ohio District Court Case No. 213-cv MOTION TO DISMISS OF APPELLEES-DEFENDANTS JON HUSTED AND STATE OF OHIO MICHAEL DEWINE ATTORNEY GENERAL OF OHIO ERIC E. MURPHY* ( ) *Counsel of Record State Solicitor MICHAEL J. HENDERSHOT ( ) Chief Deputy Solicitor 30 E. Broad Street, 17th Floor Columbus, Ohio Counsel for Appellee-Defendants Jon Husted and State of Ohio

2 This appeal should be dismissed for lack of jurisdiction because Appellant Libertarian Party of Ohio ( Party ) filed its notice of appeal five days after the applicable deadline, and no intervening motion tolled that deadline. On October 14, 2015, the district court granted partial summary judgment in favor of the State Appellees, holding that various Ohio statutes did not violate the First Amendment or Fourteenth Amendment and that sovereign immunity barred the Party s state constitutional claims. On October 23, the Party moved the district court to enter a Civil Rule 54(b) order. On November 18, before the court had ruled on the motion, the Party filed a notice of appeal. Courts of appeals have jurisdiction over [i]nterlocutory orders of the district courts... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions U.S.C. 1292(a)(1). Orders granting a Rule 12(b)(6) motion or summary-judgment motion that effectively deny a request for a preliminary injunction are interlocutory under this statute. See Am. Tunaboat Ass n v. Brown, 67 F.3d 1404, 1406 (9th Cir. 1995); Data Cash Systems, Inc. v. JS&A Group, Inc., 628 F.2d 1038, 1040 (7th Cir. 1980); Build of Buffalo, Inc. v. Sedita, 441 F.2d 284, 287 (2d Cir. 1971). Here, the court s summary-judgment order denied the Party s request for preliminary injunctive relief from the enforcement of the state statutes, and it was thus immediately

3 appealable. The Party agrees, noting that jurisdiction was proper under 28 U.S.C. 1292(a)(1). See Mot. for Emergency Inj. at 11 ( App. Motion ). Because the order was immediately appealable, the Party was required to file a notice of appeal within 30 days after its entry. Fed. R. App. P. 4(a)(1)(A); see Ortiz v. Jordan, 562 U.S. 180, (2011). It did not meet this deadline. Rather, it filed its notice of appeal 35 days after the district court s October 14 order. That delay requires dismissing this appeal. See, e.g., Cummins v. Wells, 872 F.2d 1024 (6th Cir. 1989) (dismissing case for failing to appeal order within 30 days); Jones v. Belhaven College, 98 F. App x 283, 284 (5th Cir. 2004) (dismissing case for failure to appeal interlocutory order within 30 days). The Party s pending Civil Rule 54(b) motion, which only applies to Count Five in the complaint, Motion, R. 339 at 1, PageID # 8729, did not toll the deadline to appeal the judgment on that claim because such motions are not listed among those that extend the 30-day deadline under Appellate Rule 4(a)(4). For this reason, numerous courts have specifically held that Rule 54(b) motions do not toll the time to appeal. See Cobell v. Jewell, 802 F.3d 12, 19 (D.C. Cir. 2015); Goodman v. Johnson, 471 F. App x 114, 115 (4th Cir. 2012); Schaeffer v. First Nat l Bank of Lincolnwood, 465 F.2d 234, 236 (7th Cir. 1972). Nor will the District Court s future actions as to the Civil Rule 54(b) motion later revive the now-closed appeal because [t]he thirty-day period is mandatory 2

4 and jurisdictional and may only be extended in accordance with the rules. Denley v. Searson/Am. Exp., Inc., 733 F.2d 39, (6th Cir. 1984) (holding that a district court could not extend appeal deadline by considering untimely filed Rule 59(e) motions or announcing an extension after the deadline), superseded by statute on other grounds as recognized in Arnold v. Arnold Corp.-Printed Commc ns for Bus., 920 F.2d 1269, 1275 n.5 (6th Cir. 1990). Finally, the Party s citations to cases holding that motions to modify judgments toll the time to appeal are irrelevant because the Party did not file such a motion. See App. Motion at 11 (citing United States v. Hill, 95 F.3d 1153 (6th Cir. 1996); Wackenhut Corp. v. Guardsmark, Inc., 856 F.2d 197 (6th Cir. 1988)). To alter or amend a judgment, a party must file a motion under Civil Rule 59(e). To be sure, some courts have construed post-judgment motions filed under different rules but requesting modification of a judgment as Civil Rule 59(e) motions. See Lichtenberg v. Besicorp Grp. Inc., 204 F.3d 397, 401 (2d Cir. 2000). Such a construction is unwarranted here because a Rule 54(b) motion is not a postjudgment motion soliciting relief from the district court. Rather, it is a prejudgment motion seeking to categorize an order as final so that relief may be sought from an appellate court. See Cobell, 802 F.3d at 19 (describing the differing operations of Rules 54(b) and 59(e)); Goodman, 471 F. App x at 115 3

5 n.1 (noting the district court s erroneous characterization of a Rule 54(b) motion as a Rule 59(e) motion). The Party s tolling claim is particularly unpersuasive given its admission that the court s order was already appealable under 28 U.S.C. 1292(a)(1). App. Motion at 11. A predominant purpose of tolling is to relieve parties of preparing appeals when the judgment may be altered. See Am. Sec. Bank, N.A. v. John Y. Harrison Realty, Inc., 670 F.2d 317, 321 (D.C. Cir. 1982). Here, the pending Civil Rule 54(b) motion will not alter the District Court s order in any way. Unlike typical Civil Rule 54(b) motions, the Party s motion did not seek to classify an otherwise non-appealable order as appealable. And unlike a Civil Rule 59(e) motion, it did not seek to alter the substance of the order. Instead, the Party s motion sought to have the District Court issue a ruling that would serve no purpose but to extend the deadline to appeal. Indulging that request would run contrary to the purpose of tolling and would encourage motions that unnecessarily extend the time to appeal. Cf. Glinka v. Maytag Corp., 90 F.3d 72, 74 (2d Cir. 1996) (holding that a motion to reconsider a Rule 59(e) motion did not toll the deadline to appeal and noting that such a ruling would encourage frivolous motions ). 4

6 CONCLUSION This Court should dismiss the appeal as untimely. Respectfully submitted, MICHAEL DEWINE ATTORNEY GENERAL OF OHIO /s/ Eric E. Murphy ERIC E. MURPHY* ( ) *Counsel of Record State Solicitor MICHAEL J. HENDERSHOT ( ) Chief Deputy Solicitor 30 E. Broad Street, 17th Floor Columbus, Ohio Counsel for Appellees-Defendants Jon Husted and State of Ohio 5

7 CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing Motion to Dismiss of Appellees-Defendants Jon Husted and State of Ohio has been served through the Court s CM/ECF system November 24, I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. /s/ Eric E. Murphy Eric E. Murphy Counsel for Appellees-Defendants Jon Husted and State of Ohio