Gilmore v. Palestinian Interim

• Court: District Court, District of Columbia
• Decided: February 12, 2010
• Docket: Civil Action No. 2001-0853
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ REUVEN GILMORE, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 01-853 (GK) ) PALESTINIAN INTERIM SELF- ) GOVERNMENT AUTHORITY, et. al.,) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

Plaintiffs, who are various family members of Esh Kodesh

Gilmore, the deceased victim of an alleged terrorist shooting in

Jerusalem, Israel on October 30, 2000, bring this action against

Defendants Palestinian Interim Self-Government Authority (“PA”) and

Palestinian Liberation Organization (“PLO”) under the Anti-

Terrorism Act of 1991 (“ATA”), 18 U.S.C. § 2331, et seq. On

December 28, 2008, this Court entered an order [Dkt. No. 157]

granting Defendants’ Motion to Vacate Clerk’s Entry of Default,

ordering Defendants to post a bond in the amount of $1 million by

February 1, 2010, directing the parties to submit Rule 16

statements by February 11, 2010, and setting an initial scheduling

conference for February 16, 2010. On January 11, 2010, Plaintiffs

appealed the Order granting Defendants’ Motion to Vacate.

Defendants filed a Motion to Dismiss Appeal on January 22, 2010.

This matter is presently before the Court on Plaintiffs’

Motion to Stay and Plaintiffs’ Ex Parte Motion for an Immediate Stay of proceedings before this Court [Dkt. Nos. 162 and 163]

pending resolution of the matter on appeal. Upon consideration of

the Motions, Opposition, and the entire record herein, and for the

reasons set forth below, the Motions to Stay are denied.

28 U.S.C. § 1291 limits appeals as of right from “final

decisions” of the district courts. The collateral order doctrine

provides a narrow exception to this rule, permitting appeal before

entry of final judgment for 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.” Digital Equipment Corp. v. Desktop Direct,

Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 1995-96 (1994).

Plaintiffs, while conceding the basic prevailing law, argue in

support of their Motions to Stay that this Court’s December 28,

2009 Order granting the Motion to Vacate fits within the collateral

order doctrine, and therefore that the general rule codified in §

1291 is not applicable to this case.

Plaintiffs are wrong. This Circuit has made clear that the

collateral order doctrine does not apply to an order vacating an

entry of default. In Cason v. District of Columbia Dep't of

Corrections, No. 06-7203, 2007 WL 2892694, at *1 (D.C. Cir. June

15, 2007), the Court of Appeals concluded that it lacked

jurisdiction to review the District Court’s order vacating the

2 entry of default judgment and the order denying reconsideration

“because they are neither final nor appealable interlocutory or

collateral orders,” since “[a]ppellant may challenge these orders

upon entry of the final judgment." Id. Similarly, in Lewis v.

Reno, No. 95-5295, 1997 WL 68545 (D.C. Cir. Jan. 15, 1997), our

Circuit reasoned that “[a]n order granting a motion to vacate

leaves the case pending for further determination and is akin to an

order granting a new trial, and is therefore unappealable.”

Further, the Tenth Circuit has held in an analogous context

that an order granting a Rule 60(b) motion to vacate judgment is

not immediately appealable because the plaintiff “is free to seek

review of the district court's decision after a final judgment is

entered in his case.” Stubblefield v. Windsor Capital Group, 74

F.3d 990, 997 (10th Cir. 1996).

The relevant decisions in the Tenth Circuit and in this

Circuit are in agreement with the Supreme Court’s warning that the

conditions for collateral order appeal should be applied

stringently, and that the issue of appealability “is to be

determined for the entire category to which a claim belongs.”

Digital Equipment Corp., 511 U.S. at 868. See also Mohawk

Industries v. Carpenter, 130 S.Ct. 599, 606 (crucial question in

applying collateral order doctrine is “whether deferring review

until final judgment so imperils the interest as to justify the

cost of allowing immediate appeal of the entire class of relevant

3 orders”) (emphasis added); Will v. Hallock, 546 U.S. 318, 353, 126

S.Ct. 952, 959 (2006) (“[I]t is not mere avoidance of a trial, but

avoidance of a trial that would imperil a substantial public

interest, that counts when asking whether an order is ‘effectively’

unreviewable if review is to be left until later.”) (citation

omitted); Doe v. Exxon Mobile Corp., 473 F.3d 345 (D.C. Cir. 2007)

(concluding that dismissal on grounds of political question

doctrine does not fall within collateral order doctrine).

Finally, the cases cited by Plaintiffs in support of a finding

of irreparable harm under the third prong of the collateral order

doctrine are readily distinguishable, and thus unpersuasive. None

of them addresses an order vacating an entry of default. In

Riverhead Savings Bank v. Nat. Mortgage Equity Corp., 893 F.2d

1109, 1114 (9th Cir. 1990), the Court found that a district court

order directing a third-party defendant to pay fees would be

effectively unreviewable if review were delayed until after final

judgment because the third-party defendant, which was in

receivership, had a “strong likelihood of insolvency.” The cases

cited in Riverhead similarly dealt with cases where there was a

“significant danger” of insolvency, where the funds would be

subject to the claims of an intervening party, and where the funds

denied would be irretrievable once distributed to shareholders.

Id. (citations omitted).

4 Next, Plaintiffs cite I.A.M. Nat. Pension Fund Benefit Plan v.

Cooper Industries, Inc., 789 F.2d 21, 25 n.7 (D.C. Cir. 1986), for

its brief discussion of the collateral order doctrine, which was

not implicated in the case itself. I.A.M. Nat. Pension Fund

Benefit Plan addressed a district court order requiring the

defendant employer to pay a first installment of withdrawal

liability to the plaintiff fund pending resolution of its

counterclaim. The Court of Appeals for our Circuit held that the

order was not immediately reviewable because the employer did not

show that the order would cause irreparable harm, but neither party

argued--and the Court of Appeals did not suggest--that the

collateral order doctrine applied. Finally, Plaintiffs cite

Chrysler v. Fedders, 670 F.2d 1316 (3d Cir. 1982), a case in which

the Third Circuit found that the collateral order doctrine applied

to a district court order vacating notice of lis pendens.

To summarize, the caselaw in this Circuit directly holds that

the collateral order doctrine does not apply to orders vacating an

entry of default, the prevailing law on the collateral order

doctrine suggests that such orders should not fall within its

scope, and the cases cited by Plaintiffs are distinguishable and

5 unpersuasive.1 For the reasons set forth above, Plaintiffs’

Motions to Stay are denied.

An Order will accompany this Memorandum Opinion.

/s/ February 12, 2010 Gladys Kessler United States District Judge

Copies to: attorneys on record via ECF

1 It is particularly difficult to understand Plaintiffs’ position in light of the fact that one of their chief arguments in opposing the Motion to Vacate was that granting such a motion would cause intolerable delay in providing relief to Plaintiffs. Allowing these Motions to Stay would preclude holding a long- scheduled Initial Scheduling Conference on February 16, 2010, and prevent the issuance of a Scheduling Order, which would give the parties the go-ahead for starting discovery.