UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT LIBERTARIAN PARTY OF OHIO, et al., Appellants-Plaintiffs, V. CASE NO. 15-4270 JON HUSTED, in his Official Capacity as Ohio Secretary of State, and THE STATE OF OHIO, Appellee-Defendant, Appellee-Intervenor-Defendant. / APPELLANTS' RESPONSE TO MOTION TO DISMISS OF APPELLEES-DEFENDANTS' JON HUSTED AND STATE OF OHIO Mark Kafantaris Mark R. Brown 625 City Park Avenue 303 E. Broad Street Columbus, Ohio 43206 Columbus, Ohio 43215 (614) 223-1444 (614) 236-6590 (614) 221-3713 (fax) (614) 236-6956 mark@kafantaris.com mbrown@law.capital.edu Attorneys for Appellants
Sixth Circuit Case Number: Name of counsel: UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Disclosure of Corporate Affiliations and Financial Interest 15-4270 Case Name: Libertarian Party of Ohio v. Husted Pursuant to 6th Cir. R. 26.1, Libertarian Party of Ohio, et al., makes the following disclosure: Name of Party 1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party: No. Mark R. Brown 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest: No. CERTIFICATE OF SERVICE I certify that on November 20, 2015 the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record. s/ Mark R. Brown This statement is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form. 6CA-1 8/08 Page 1 of 2
6th Cir. R. 26.1 DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST (a) Parties Required to Make Disclosure. With the exception of the United States government or agencies thereof or a state government or agencies or political subdivisions thereof, all parties and amici curiae to a civil or bankruptcy case, agency review proceeding, or original proceedings, and all corporate defendants in a criminal case shall file a corporate affiliate/financial interest disclosure statement. A negative report is required except in the case of individual criminal defendants. (b) Financial Interest to Be Disclosed. (1) Whenever a corporation that is a party to an appeal, or which appears as amicus curiae, is a subsidiary or affiliate of any publicly owned corporation not named in the appeal, counsel for the corporation that is a party or amicus shall advise the clerk in the manner provided by subdivision (c) of this rule of the identity of the parent corporation or affiliate and the relationship between it and the corporation that is a party or amicus to the appeal. A corporation shall be considered an affiliate of a publicly owned corporation for purposes of this rule if it controls, is controlled by, or is under common control with a publicly owned corporation. (2) Whenever, by reason of insurance, a franchise agreement, or indemnity agreement, a publicly owned corporation or its affiliate, not a party to the appeal, nor an amicus, has a substantial financial interest in the outcome of litigation, counsel for the party or amicus whose interest is aligned with that of the publicly owned corporation or its affiliate shall advise the clerk in the manner provided by subdivision (c) of this rule of the identity of the publicly owned corporation and the nature of its or its affiliate's substantial financial interest in the outcome of the litigation. (c) Form and Time of Disclosure. The disclosure statement shall be made on a form provided by the clerk and filed with the brief of a party or amicus or upon filing a motion, response, petition, or answer in this Court, whichever first occurs. 6CA-1 8/08 Page 2 of 2
I. Plaintiffs' Motion to Modify Tolls the Time to Appeal. Appellees argue that a motion to modify a District Court's judgment to certify that there is "no just reason for delay" cannot qualify as a post-judgment motion within the meaning of Federal Rule of Appellate Procedure 4(a)(4). See Motion to Dismiss of Appellees-Defendants Jon Husted and State of Ohio (hereinafter "Motion to Dismiss"), Sixth Circuit Doc. No. 12 at 3. They cite Cobel v. Jewell, 802 F.3d 12, 19 (D.C. Cir. 2015), Goodman v. Johnson, 471 Fed Appx. 114, 115 (4th Cir. 2012), and Schaeffer v. National Bank of Lincolnwood, 465 F.2d 234, 236 (7th Cir. 1972), for this proposition. None of these cases, however, involved a timely motion to modify a judgment to certify that "no just reason for delay" existed to prohibit an immediate appeal. All three cases addressed motions for reconsideration, which under Rule 54(b) can be filed at "any time." This Court has noted that a timely motion to modify a judgment to certify it under Rule 54(b) tolls the time for appeal under Federal Rule of Appellate Procedure 4. In Gillis v. United States Department of Health and Human Services, 759 F.2d 565, 569 n.4 (6 th Cir. 1985), the Court discussed whether then-recent amendment to Federal Rule of Appellate Procedure 4(a)(4) that preserved appeals that had been filed before resolutions of certain motions saved the appeal at hand. It concluded it did not, stating: Nor does Fed. R.App. P. 4(a)(4), as amended in 1979, which provides that notices of appeal filed during the pendency of Fed. R. Civ. P. 50(b), 52(b) 1
and 59 post-trial motions, shall have no effect, mandate a different result. No such motions are involved here. No request to have the judgment certified under rule 54(b) was made. Id. at 569 n.4. Had a request for certification under Rule 54(b) been made, the time for appeal would have tolled. The three cases relied upon by Appellees were all cases involving or discussing motions for reconsideration under Rule 54(b). In Cobel v. Jewell, 802 F.3d 12, 19 (D.C. Cir. 2015), for example, the plaintiffs had sought reconsideration under Rule 54(b), and then subsequently sought to appeal a denial of that motion. The government, in response, argued that the plaintiffs' appeal was untimely, because it sought a reconsideration under Rule 54(b) rather than expressly under Rule 59(e). Id. at 19. The Court of appeals disagreed with this argument; whether Rule 54(b) or Rule 59(e) was cited was not determinative. Id. at 20. In the course of ruling that the appeal there was proper, the Court observed that Rule 54(b) claims for reconsideration may be filed at "any time." Id. "Because Rule 54(b) operates while a case is still ongoing in district court and before any appealable final judgment has been entered, such motions for reconsideration, of course, do not toll the time for taking an appeal because the clock has not even started ticking." Id. (emphasis added). The Court was simply pointing out that garden variety Rule 54(b) motions for reconsideration -- which can be made at any time -- do not toll the time for appeal. This is a far cry from arguing that motions to 2
modify and certify final judgments for immediate appeal do not toll the time for appeal. The Court said no such thing. No Court has. Schaeffer v. National Bank of Lincolnwood, 465 F. 2d 234, 236 (7th Cir. 1972), also involved a motion for reconsideration under Rule 54(b). Indeed, the motion for reconsideration in that case was filed several months after the initial judgment, rendering it plainly untimely under Rule 59(e). Id. at 235. It could not have been a Rule 59 motion. Because the Rule 54(b) motion for reconsideration was filed so late, the Seventh Circuit ruled it did not toll the appellate clock: "We believe that the lack of diligence on the part of the plaintiffs in seeking the Rule 54(b) order they eventually obtained, together with the passage of such a substantial expanse of time between our dismissal and the district court's order, is sufficient, without more, to warrant our dismissal of the present appeal." Id. at 235-36. Even though it was a motion for reconsideration, had the plaintiffs sought the Rule 54(b) order in a more timely fashion, the outcome might have been different. Goodman v. Johnson, 471 Fed. Appx. 114, 115 (4th Cir. 2012), likewise involved a motion for reconsideration under Rule 54(b). The plaintiff sought to appeal the District Court's "denying his motion seeking reconsideration of th[e] dismissal" of his complaint. Id. at *1. The case had nothing to do with a motion to 3
modify, let alone a timely motion to certify the matter for appeal as a final judgment. By way of sharp contrast, Plaintiffs/Appellants here did not seek reconsideration under Rule 54(b). Plaintiffs moved the District Court to modify its Opinion and Order to certify that there was "no just reason" to delay an immediate appeal. See McIntyre v. First National Bank of Cincinnati, 585 F.2d 190, 191 (6th Cir. 1978) (recognizing that party may move the court to find "no just reason for delay"). Rule 54(b) was invoked to support modification because that is the pertinent rule allowing certification. Plaintiffs did not request "reconsideration" in any shape or form. Their motion was filed well within the time required for modification under Rule 59(e). Last, and most importantly, the District Court expressly recognized Plaintiffs' motion as one to modify its prior Opinion and Order when it directed Defendants to respond by November 6, 2015. See Doc. No. 343 at PAGEID # 8746 (Order) ("Secretary Husted and the State of Ohio's response to Plaintiffs' motion to modify shall be filed November 6,2015") (emphasis added). II. Motions to Modify Need Not Refer to Rule 59. Appellees fail to cite a single authority for the proposition that a timely motion to modify a judgment to certify that there is "no just reason for delay" 4
under Rule 54(b) does not toll Federal Rule of Appellate Procedure 4's time. No such authority exists. The reason is simple. Courts across the country have unanimously ruled that motions to modify judgments qualify under Federal Rule of Appellate Procedure 4(a)(4) regardless of whether they cite Rule 59. Appellees argue that "[t]o alter or amend a judgment, a party must file a motion under Civil Rule 59(e)." Motion to Dismiss, Sixth Circuit Doc. No. 12 at 4. Appellees are wrong. The commentary to Federal Rule of Appellate Procedure Rule 4(a)(4) makes this clear. It states that its 1993 Amendment "comports with the practice in several circuits of treating all motions to alter or amend judgments that are made within 10 days after entry of judgment as Rule 59(e) motions for purposes of Rule 4(a)(4)." See https://www.law.cornell.edu/rules/frap/rule_4 (last visited November 24, 2015) (citing Finch v. City of Vernon, 845 F.2d 256 (11th Cir. 1988); Rados v. Celotex Corp., 809 F.2d 170 (2d Cir. 1986); Skagerberg v. Oklahoma, 797 F.2d 881 (10th Cir. 1986)). The Advisory Committee notes could have included Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1418-19 (9 th Cir. 1984), which stated that "[w]e have consistently held that if a motion is served within ten days of judgment and it could have been brought under Rule 59(e), it tolls the time for appeal although it does not expressly invoke Rule 59." Sierra On-Line has been relied 5
upon by this Court. See Wackenhut Corp. v. Guardsmark, 856 F.2d 197 (6 th Cir. 1988). This Court, moreover, has stated that "a timely motion to modify or amend an order generally tolls the time for filing a notice of appeal." United States v. Hill, 95 F.3d 1153, *1 (6th Cir. 1996). Contrary to Appellees' argument, the reality is that motions to modify judgments filed within the time constraints of Rule 59 have uniformly been held to toll the time for appeal under Federal Rule of Appellate Procedure 4(a). This is true even when they do not cite Rule 59. The Advisory Committee Notes to Federal Rule of Appellate Procedure 4(a)(4) acknowledge that this is precisely what the framers of Rule 4(a)(4) had in mind. There is no contrary authority. Here, the District Court understood Plaintiffs' motion as one to "modify" its judgment. It was not referred to as a motion for reconsideration or anything else. It was a timely motion to modify, filed within nine days of the District Court's Opinion and Order. Plaintiffs could have supported it by citing to Rule 59(e) as well as Rule 54(b). But they were under no obligation to cite Rule 59. The District Court was fully aware of what the motion sought to do. Simply put, a timely motion to modify tolls the limitations period under Federal Rule of Appellate Procedure 4 regardless of whether it cites Rule 59. Appellees cite no authority to the contrary. 6
III. Appellants Were Not Required to Immediately Appeal an Interlocutory Decision. Appellees assert that because interlocutory jurisdiction over the District Court's Opinion and Order "was proper under 28 U.S.C. 1292(a)(1)," Motion to Dismiss, Sixth Circuit Doc. No. 12 at 3, and "[b]ecause the order was immediately appealable, the Party was required to file a notice of appeal within 30 days of its entry." Id. Appellees are incorrect. Assuming that the interlocutory decision rendered by the District Court were immediately appealable under Graves v. Mahoning County, 534 Fed. Appx. 399, 403 (6th Cir. 2013), and Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981) - - which Plaintiffs/Appellants believe is true and Appellees now apparently concede -- they were under no obligation to take the interlocutory appeal. See Weaver v. University of Cincinnati, 970 F.2d 1523, 1538 (6th Cir. 1992) (holding that parties are under no obligation to take interlocutory appeals). Plaintiffs/Appellants had every right to seek a modification of the decision to certify it for appeal as if from final judgment. Plaintiffs did not take an immediate interlocutory appeal from the October 14, 2015 decision of the District Court for a simple reason; appellate jurisdiction over the dismissal of Count Five, the Ohio constitutional claim, was not patently clear given the posture of the case. While the denial of relief under Count Four, the federal constitutional claim, plainly fits within the meaning of Graves v. Mahoning 7
County, 534 Fed. Appx. 399, 403 (6th Cir. 2013), and Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981), a dismissal of a state constitutional claim under the Eleventh Amendment is not nearly so obvious. Research revealed to Plaintiffs that a more certain path to appeal the dismissal of a claim under the Eleventh Amendment was Rule 54(b) certification. See Carter v. City of Philadelphia, 181 F.3d 339, 346 (3d Cir. 1999) (holding that Rule 54(b) certification of dismissal under Eleventh Amendment was proper). Therefore, Plaintiffs/Appellants moved to modify the decision to certify it for appeal as a final judgment. IV. Rule 4(a)(4) Tolls the Time for Appeal. Federal Rule of Appellate Procedure 4(a)(4), entitled "Effect of a Motion on a Notice of Appeal," states that "the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion" filed with the District Court to "alter or amend the judgment under Rule 59." As explained above, these motions to modify need not be filed under Rule 59. They simply need to be timely motions to modify. Regardless of whether Plaintiffs could have taken an immediate interlocutory appeal, they did not. They were not required to. Instead, they filed a timely motion to modify. Under Federal Rule of Appellate Procedure 4(a)(4)(A), this timely motion tolls the time for filing their interlocutory appeal from "the entry 8
of the order disposing of the" motion. Courts have routinely applied Rule 4(a)(4)(A) to interlocutory appeals in the same fashion that it applies to appeals from final judgments. Lichtenberg v. Besicorp Group, Inc., 204 F.3d 397, 401 (2d Cir. 2000). V. Plaintiffs' Notice of Appeal Will Take Effect When the District Court Rules on Their Motion to Modify. Federal Rule of Appellate Procedure 4(a)(B)(i) states that "[i]f a party files a notice of appeal after the court announces or enters a judgment but before it disposes of any motion listed in Rule 4(a)(4)(A) the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered." Consequently, should the District Court deny Plaintiffs' motion to amend, Plaintiffs' notice of appeal will take effect on that date. Plaintiffs' interlocutory appeal under Counts Four and Five, which Appellees conceded could have been taken immediately, will ripen. Should the District Court grant Plaintiffs' motion to modify and certify their appeal under Rule 54(b), Plaintiffs appeal of Counts Four and/or Five will likewise ripen under Federal Rule of Appellate Procedure 4(a)(B)(i). Either way, Plaintiffs' appeal will properly ripen with the District Court's resolution of Plaintiffs' motion to modify. CONCLUSION Appellees' motion to dismiss should be DENIED. 9
Respectfully submitted, s/mark R. Brown Mark Kafantaris Mark R. Brown 625 City Park Avenue 303 East Broad Street Columbus, Ohio 43206 Columbus, OH 43215 (614) 223-1444 (614) 236-6590 (614) 221-3713 (fax) (614) 236-6956 (fax) mark@kafantaris.com mbrown@law.capital.edu CERTIFICATE OF SERVICE I hereby certify that this Response was filed using the Court's electronic filing system and that copies of this First Amended Complaint will be automatically served on all parties of record through the Court's electronic filing system. s/mark R. Brown Mark R. Brown CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(5) & (6) I hereby certify that this Response complies with the typeface limitations found in Federal Rule of Appellate Procedure 32(a)(5) & (6) in that the type-face is proportionally spaced 14-point Times New Roman type. s/mark R. Brown 10