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Appeals Regarding Mode of Trial

Generally, orders granting or denying consolidation in state civil cases are not immediately appealable.[i]  Even as relaxed by the “collateral order”and “death knell” doctrines, orders granting or denying consolidation in federal civil cases are not immediately appealable, either under the finality rule embodied in the general federal appellate jurisdiction statute or under the special provisions of the statute authorizing an immediate appeal to be taken from certain exceptional interlocutory orders.[ii]  The consolidation order is appealable under the collateral order doctrine, if an order granting consolidation constitutes an order denying the party’s due process rights to prosecute his/her own separate and distinct claims or defenses without having them so merged into the claims and defenses of others that irreparable injury results.[iii]

Orders granting severance or separate trials in state civil cases are not immediately appealable.[iv]  An order denying a motion for a severance in a state civil trial also is not a final decree which is immediately appealable.[v]  An order or decree staying, or refusing to stay a state civil action, because another civil action is pending in state court, is not reviewable by appeal.[vi]  An appeal of a stay may be allowed on the ground that the stay is, in effect, an injunction and immediately appealable under a statutory provision authorizing review of the entry of an injunction.[vii]  Where the language suggests the order is subject to revision or progress reports, and the res judicata effect of the judgment in state court would preclude further litigation in federal court, an order granting a stay in federal court pending resolution of a state suit is final and appealable.[viii]  Under the general federal appellate jurisdiction statute, a nontentative, final decision to stay federal litigation under the abstention doctrine is immediately appealable.[ix]  However, federalism concerns are not implicated by a motion to stay in favor of an action in another federal district.[x]

Under 28 U.S.C.A. § 1291, a stay order is appealable where:

  • it effectively deprives the plaintiff of his/her day in court, as where a prisoner’s suit is stayed until his or her release from incarceration.
  • it limits the stay to which a receiver is entitled under federal law.
  • a delay results in a denial of justice, such as in a school desegregation case.
  • a civil action alleging that a criminal prosecution would violate the plaintiffs’ constitutional rights is stayed pending trial of the criminal action.[xi]

Within a case that involves expert administrative discretion to the federal administrative agency charged with exercising that discretion for an initial decision, a federal court is required to transfer issues under the doctrine of primary jurisdiction.[xii]  Under the general federal appellate jurisdiction statute and the collateral order doctrine, an appeal of an order that stays a lawsuit while referring a question to a federal administrative body under the doctrine of primary jurisdiction is not a final decision and is unappealable.[xiii]  Administrative abstention orders are final decisions that are appealable under the general federal appellate jurisdiction statute, because they completely relinquish federal jurisdiction by giving way to state administrative agencies.[xiv]

An order granting or refusing a continuance, postponement, or adjournment of the trial or other proceeding involved in a state civil case is merely interlocutory in nature and nonappealable, in the absence of a statutory provision to the effect that an order granting or refusing a continuance is appealable.[xv]  If a pretrial motion for continuance is renewed at the time of the trial, it may be preserved for appellate review.[xvi]

Under special statutes or rules permitting an immediate appeal to be taken from certain exceptional classes of interlocutory orders, orders denying the right to a jury trial of particular actions or issues may be directly appealable.[xvii]  Moreover, an order denying a demand for a jury trial in a federal civil case is a nonappealable interlocutory order.[xviii]

[i] Western Shale Products Co. v. City of Fort Scott, 172 Kan. 336, 239 P.2d 828 (1952);

[ii] In re Master Key Antitrust Litigation, 528 F.2d 5 (2d Cir. 1975);

[iii] In re Master Key Antitrust Litigation, 528 F.2d 5 (2d Cir. 1975);

[iv] Taylor v. Major Finance Co., Inc., 289 Ala. 458, 268 So. 2d 738, 77 A.L.R.3d 1072 (1972);

[v] Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242 (1961).

[vi] Almon v. R. H. Macy & Co., 103 Ga. App. 372, 119 S.E.2d 140 (1961);

[vii] Washington Suburban Sanitary Com’n v. C.I. Mitchell and Best Co., 303 Md. 544, 495 A.2d 30 (1985).

[viii] Burns v. Watler, 931 F.2d 140 (1st Cir. 1991); Rojas-Hernandez v. Puerto Rico Elec. Power Authority, 925 F.2d 492 (1st Cir. 1991); Cheyney State College Faculty v. Hufstedler, 703 F.2d 732; General Reinsurance Corp. v. Ciba-Geigy Corp., 853 F.2d 78 (2d Cir. 1988).

[ix] Schall v. Joyce, 885 F.2d 101 (3d Cir. 1989).

[x] Harmon Kardon, Inc. v. Ashley Hi-Fi, 602 F.2d 21 (1st Cir. 1979).

[xi] Praxis Properties, Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49 (3d Cir. 1991); Kelley v. Metropolitan County Bd. of Ed. of Nashville and Davidson County, Tenn., 436 F.2d 856 (6th Cir. 1970); McSurely v. McClellan, 426 F.2d 664, 13 Fed. R. Serv. 2d 808 (D.C. Cir. 1970).

[xii] Richman Bros. Records, Inc. v. U.S. Sprint Communications Co., 953 F.2d 1431 (3d Cir. 1991).

[xiii] Id.

[xiv] Id.

[xv] Alexander v. State, 71 Okla. Crim. 47 (Okla. Crim. App. 1940)

[xvi] McCray v. State, 369 So. 2d 111 (Fla. Dist. Ct. App. 1st Dist. 1979)

[xvii] Southern Baptist Hospital v. Williams, 89 So. 2d 769 (La.App., Orleans 1956)

[xviii] Western Geophysical Co. v. Bolt Assoc., Inc., 440 F.2d 765 (2d Cir. Conn. 1971)

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