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I recently filed for leave to amend a civil complaint in a FOIA case, the government conceded that the claims were implied in the original complaint but not perfected, Additionally, the claims I wished to added Defendant's personal and constructive notice. Where by no means the added counts prejudiced them in any real way.  To make a long story short. I took "interlocutory appeal".

 

My question is can cite to the record of the District Court or do I have re-attach the motions and answers being challenged?   

 

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Did you petition for leave to file the interlocutory appeal?  It's not a matter of right.  Whatever the basis of the appeal, you must provide the court with the  transcript (which you must order within 14 days) and any related opinion or memorandum.  IF the COA decides to hear it, the clerk will notice you with a briefing schedule.  All other documents you wish to reference in that brief would have to be attached.  

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3 minutes ago, LegalwriterOne said:

Did you petition for leave to file the interlocutory appeal?  It's not a matter of right.  Whatever the basis of the appeal, you must provide the court with the certified transcript and all other documents relevant to the issue.

 

I understand this, there is no transcript to certify, review of the collateral will be on the pleadings on a motion for leave to amend complaint. Amendment was denied because it would alter the scope of the proceedings. Not that the amendment was meritless or filed in bad faith or for dilatory reasons.  

 

I cannot just cite the record (in this case the motions and responses)?

 

 

 

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No, you cannot just cite your motions and responses.  The petition is not a brief, it's a petition and the court is not going to review all of your motions and briefs.  You present what the procedural facts are, what your issue is and what you want the court to do.  You will need to certify that there is no transcript and you are proceeding on the order entered by the court without a hearing on whatever specific date denying your request.  The petition as set forth in Rule 5 shall include: 

(A) the facts necessary to understand the question presented;

(B) the question itself;

(C) the relief sought;

(D) the reasons why the appeal should be allowed and is authorized by a statute or rule; and

(E) an attached copy of:

(i) the order, decree, or judgment complained of and any related opinion or memorandum, and

(ii) any order stating the district court's permission to appeal or finding that the necessary conditions are met.

 

Understand that the standard of review is whether or not the district court abused its discretion and 99.999% of the time, the COA will say no they didn't.

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On 9/3/2017 at 7:18 AM, foolish said:

I recently filed for leave to amend a civil complaint in a FOIA case. . . .  To make a long story short. I took "interlocutory appeal"

 

I take it then that your motion for leave to amend was denied.

 

When you say you "took interlocutory appeal," what do you mean by that?  You cannot take an interlocutory appeal from an order denying a motion for leave to amend a complaint unless the district court issues an order under 28 U.S.C. section 1292(b).  This is what "LegalwriterOne" asked about when he asked, "Did you petition for leave to file the interlocutory appeal?"  You did not answer his question.  Even if you obtain such an order, the court of appeals has discretion to allow or not allow the appeal, but the court of appeals won't even consider it without the appropriate order from the district court.  So...did you obtain a section 1292(b) order from the district court?  If the answer is no, then rest of your questions don't matter.  Nevertheless....

 

 

On 9/3/2017 at 7:18 AM, foolish said:

can cite to the record of the District Court or do I have re-attach the motions and answers being challenged?

 

I can't imagine an appeal without citations to the record of the district court.  As far as "re-attach[ing] the motions and answers," what do you mean by that?  To "re-attach" something means to attach something multiple times, but it's not even clear what you're contemplating attaching these motions and answers to.

 

 

On 9/3/2017 at 8:40 AM, foolish said:

I cannot just cite the record (in this case the motions and responses)?

 

What does "just cite" mean?  Here's how an appeal works:  First, you file the notice of appeal.  Second, you designate the record on appeal.  That means you tell the district court clerk which documents in the court's file to ship to the court of appeals so that the appellate judges can look at them.  This is called the clerk's transcript.  You will also provide any transcripts of court hearings.  These transcripts are referred to collectively as the reporter's transcript.  Third, you submit a brief in support of your appeal.  In that brief, you will cite to the clerk's transcript and reporter's transcript and make arguments about why the district court was wrong.  "LegalwriterOne's" most recent response above discusses Rule 5 of the Federal Rules of Appellate Procedure, which is relevant here since you're seeking an appeal by permission.  Either in your Rule 5 petition or your appellate briefs, if you "just cite the record" and don't make any arguments, you'll lose, but I'm not sure if that's what this question means.

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Interlocutory Appeal was taken under the  Cohen collateral order doctrine as in Cohen v. Beneficial Industrial Loan Corp. 337 US 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949), 

The order denying leave to amend complaint did not dispose of the FOIA claims, therefore fell within Cohen's collateral order doctrine.  The basis the order denied the amendment of additional claims was for two reasons (1) unrelated to FOIA: (2) additional claims would alter the nature and scope of the case that is underway. 

Like always I would not be here if I wasn't at an impasse and have no real option. With that said I have search for cases that describe when  a case is "fundamentally altered" and two FOIA cases that the Plaintiff's sought amendments and were denied because the amendment would have altered the FOIA dramatically both cases sought to add Bivens against individual wrongdoers in their individual capacities and both from different parts of the Court's jurisdiction

Gordon v. Courter, 118 F. Supp. 3d 276,  281,( 2015) and Ewell v. US Dept of Justice, 153 F. Supp. 3d 294 (2016) 

But as far as I can interpret these cases this type of amendments by proposing to add numerous defendants from different parts of the State to prosecute them under  BIvens claims does "fundamentally alter the scope" the case and will also be futile.   

Is there any cases closer these two cases

Appreciate any constructive help.

 

 

 

 

 

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Since you have given no indication what claims you wish to add to your Complaint and how they relate to your FOIA  complaint (which you have already refused to describe) how is it possible to find cases related to such added claims?  Note that the Cohen case you are relying on to authorize interlocutory appeal did not involve a modification of the complaint itself and does not support your claim for interlocutory appeal.

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The “collateral order doctrine,” a practical construction of the final judgment rule, permits interlocutory appeals of only those district court decisions that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action.  City of New York v. Beretta U.S.A. Corp., E.D.N.Y.2006, 234 F.R.D. 46.  Denial of a request to amend the complaint by the district court is reviewable on appeal.

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PLEASE ANSWER THE QUESTION ASKED:  Did you obtain an order under 28 U.S.C. 1292 from the district court?  Yes or no?

 

 

17 hours ago, foolish said:

Interlocutory Appeal was taken under the  Cohen collateral order doctrine as in Cohen v. Beneficial Industrial Loan Corp. 337 US 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949)

 

The collateral order rule allows appeals from interlocutory rulings so long as those rulings conclusively decide an issue separate from the merits of the case and would be effectively unreviewable after final judgment.  I can't think of any argument why an order denying a motion for leave to amend would be effectively unreviewable after final judgment.

 

Have you actually filed your notice of appeal?  If so, what is the present status of the appeal?

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2 hours ago, pg1067 said:

PLEASE ANSWER THE QUESTION ASKED:  Did you obtain an order under 28 U.S.C. 1292 from the district court?  Yes or no?

 

 Have you actually filed your notice of appeal?  If so, what is the present status of the appeal?

 

The answer to your first question is no, I didn't obtain an order under Sec, 1292, and the notice of appeal was filed the same day. The appeal has been assigned a docket # can I ask why?     

 

 

 

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1 hour ago, foolish said:

The appeal has been assigned a docket # can I ask why?

 

Because every appeal (even those that are improperly filed) gets a docket number.

 

How long ago did you file the notice of appeal?  What is the present status of the appeal?

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6 minutes ago, pg1067 said:

 

Because every appeal (even those that are improperly filed) gets a docket number.

 

How long ago did you file the notice of appeal?  What is the present status of the appeal?

 

The status of the appeal is pending, haven't received any negative orders.  Why what are you looking for or expecting (as you said even appeals improperly filed get a docket #)?

 

 

I am really having problems with trying get real definition of when a case becomes "fundamentally altered" due to some proposed amendments to the original complaint all I got is these two cases  

20 hours ago, foolish said:

Gordon v. Courter, 118 F. Supp. 3d 276,  281,( 2015) and Ewell v. US Dept of Justice, 153 F. Supp. 3d 294 (2016) 

Can I get some help.

 

 

 

 

 

 

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2 hours ago, foolish said:

The status of the appeal is pending, haven't received any negative orders.  Why what are you looking for or expecting (as you said even appeals improperly filed get a docket #)?

 

At some point your appeal is going to be dismissed for failing to obtain the section 1292 order from the district court (or, more likely, the court of appeals will issue an order to show cause why the appeal shouldn't be dismissed for that reason).

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On ‎9‎/‎10‎/‎2017 at 10:21 PM, LegalwriterOne said:

The “collateral order doctrine,” a practical construction of the final judgment rule, permits interlocutory appeals of only those district court decisions that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action.  City of New York v. Beretta U.S.A. Corp., E.D.N.Y.2006, 234 F.R.D. 46.  Denial of a request to amend the complaint by the district court is reviewable on appeal.

 

Legalwriterone.

 

I have been able to access .City of New York v. Beretta U.S.A. Corp., E.D.N.Y.2006, 234 F.R.D. 46. ever since you stated that Denial of a request to amend was reviewable on appeal.  Unfortunately, that's one of my countless handicaps, I don't have Westlaw nor Lexis Nexus nor can I afford these research engines.  Can I get some help on this case.

 

However,  I did find McKesson Corp v. Islamic Republic of Iran, 52 F.3d 346, 355 (D.C.Cir 1995) holding that denial of motion to dismiss falls within the collateral order doctrine of Cohen. 

 

Is there any cases that goes to the issue of jurisdiction of the Courts of Appeals from denial of leave to amend? 

 

 

 

 

 

  

 

 

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1 hour ago, foolish said:

I have been able to access .City of New York v. Beretta U.S.A. Corp., E.D.N.Y.2006, 234 F.R.D. 46. ever since you stated that Denial of a request to amend was reviewable on appeal.  Unfortunately, that's one of my countless handicaps, I don't have Westlaw nor Lexis Nexus nor can I afford these research engines.  Can I get some help on this case.

 

This opinion is available appears to be available via a google search (although the first listed search result asks you to "sign up for free to read more).  Of course, you can pull the F.R.D. book and read the case at any law library.  What sort of "help" do you want?

 

 

1 hour ago, foolish said:

Is there any cases that goes to the issue of jurisdiction of the Courts of Appeals from denial of leave to amend?

 

I would think you should know by now that we're not doing case research for you.  Visit a law library and start with West's Federal Digest or Moore's Federal Practice or the Wright & Miller treatise.

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6 hours ago, foolish said:

I did find McKesson Corp v. Islamic Republic of Iran, 52 F.3d 346, 355 (D.C.Cir 1995) holding that denial of motion to dismiss falls within the collateral order doctrine of Cohen. 

That's not the holding.  The issue was sovereign immunity and the appeal was held to be within the collateral order doctrine specifically because it resolved the question of sovereign immunity which was a question completely separate from the merits.  The case against Iran wasn't dismissed and appealed, their motion to dismiss on the basis of sovereign immunity was denied and they appealed.  

 

6 hours ago, foolish said:

Is there any cases that goes to the issue of jurisdiction of the Courts of Appeals from denial of leave to amend? 

 

The "right to appeal rests upon Section 128 of the Judicial Code. This limits review to ‘final decisions' in the District Court. A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."  Catlin v. U.S., 324 U.S. 229, 233 (1945)

 

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Can anybody give me a rough estimate of when the Court of appeal issues an order on appeal from a denial to amend.  e.g., weeks or months.

 

The matter has already been briefed, I filed my motion, the government replied by filing their 'motion to dismiss for lack of jurisdiction.    

 

My question is if the issues are clear cut on either side how long would it normally take for the Circuit Court take to issue an order?  (again I understand that it would be rough, but I would rather have a rough estimate that someone has experienced) 

 

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2 hours ago, foolish said:

  My question is if the issues are clear cut on either side how long would it normally take for the Circuit Court take to issue an order?  (again I understand that it would be rough, but I would rather have a rough estimate that someone has experienced) 

 

 

I'd expect a couple of months. While the court may be able to reach its decision quickly, the panel still has to assign it to one of the judges to write the opinion and as your case is not one that has any urgency they will tend to put that behind other more pressing cases and cases that came in before yours. My experience is with other circuits and not the ninth, but expecting a decision in just a couple of weeks is likely unrealistic.

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2 hours ago, Tax_Counsel said:

 expecting a decision in just a couple of weeks is likely unrealistic.

 

The weeks part was just an example,  I also believe that  couple is highly unlikely,

 

By the way, just one more question, when are 'surreplies' usually opposed??  by the non-moving party.

 

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53 minutes ago, foolish said:

By the way, just one more question, when are 'surreplies' usually opposed??  by the non-moving party.

Federal Rules of Appellate Procedure Rule 28( c): The appellant may file a brief in reply to the appellee’s brief. Unless the court permits, no further briefs may be filed.

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25 minutes ago, LegalwriterOne said:

Federal Rules of Appellate Procedure Rule 28( c): The appellant may file a brief in reply to the appellee’s brief. Unless the court permits, no further briefs may be filed.

 

Let me rephrase the question, lets say that the moving party, before filing a motion for leave to file a surreply, the moving party sought the non-moving parties position on the intended surreply.   I understand that leave is required. Which the Court may or may not grant.  

My question is are surreplies normally opposed?  

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You misusing the term surreply.  There's the appellant's brief, the appellee's response and the appellant can file a reply to the response.  That's it.  If the appellee wants to file supplemental or additional argument in response to appellant's reply, they need permission. 

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On 11/17/2017 at 4:50 PM, foolish said:

lets say that the moving party, before filing a motion for leave to file a surreply, the moving party sought the non-moving parties position on the intended surreply.   I understand that leave is required. Which the Court may or may not grant.  

My question is are surreplies normally opposed?

 

A "surreply" is essentially a reply to a reply, and they're not permitted at any level of court without the court's express permission.  In the case of an appeal, I've never heard of a party filing or seeking leave to file a surreply, although the court occasionally requests supplemental briefing on a particular issue.  In connection with a motion, a party may file an application to file a surreply, along with the proposed surreply.  How frequently does that get opposed?  Not often in my experience because it's a waste of time and money.

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I was recently informed that the issues were before the court. Can someone tell me how long before the court issues it'd order? Whatever it maybe.  The reason I ask is because I've always thought once the issues were before the court, the order was already written.  Am I wrong,?

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