Appeals of Ex Parte Orders or Judgments

An ex parte order is not a final order and hence not directly appealable.  In Petrello v. White, 533 F.3d 110 (2d Cir. N.Y. 2008), the court of appeals stated that an ex parte order that grants partial summary judgment without granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify an injunction is not ordinarily appealable.

In United States v. Quaintance, 523 F.3d 1144 (10th Cir. N.M. 2008), defendants Joseph Allen Butts, Danuel Dean Quaintance, and Mary Helen Quaintance were indicted for conspiracy to possess and possession of marijuana with intent to distribute the same.  The defendants moved to dismiss the indictment, arguing that the prosecution constituted a substantial burden on the exercise of their religion in violation of the Religious Freedom Restoration Act (“RFRA”).  The district court denied the motion and granted the government’s motion in limine impeding the defendants from raising a RFRA defense at trial.  The defendants filed the interlocutory appeal.  It was held that the defendants had not asserted a valid right not to be tried under the collateral order exception to the final judgment rule and therefore the appeal was dismissed.

In Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906 (10th Cir. Okla. 2008), the court of appeals stated that several courts have held that an order denying abstention is reviewable after an entry of final judgment and hence not immediately appealable.  Therefore, an order that dismisses the entire action is final, and an order denying dismissal is not final.

The party aggrieved by an ex parte order must first move to vacate or set aside the order and then appeal from the decision on the motion.  In Rutherford v. Kessel, 560 F.3d 874 (8th Cir. N.D. 2009), the North Dakota court stated that even if an ex parte order is not appealable, the party against whom it is issued can move a district court to vacate the ex parte order, and the court’s denial of such motion may be then appealable.  Pursuant to Section 28-27-02 of the North Dakota Century Code, appeal of an ex parte order is prohibited and the terms of this section requires an unsuccessful party to obtain a decision based on traditional adversarial methods, either on a motion to vacate the order or on a motion for reconsideration.

A judgment is an appealable order and only final judgments may be appealed.  In Kielar v. Granite Constr. Co., 647 F. Supp. 2d 524, 526 (D. Md. 2009), the court found that a district court’s decision is appealable only when the decision ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.


Inside Appeals of Ex Parte Orders or Judgments