By Richard Harris
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

The Illinois Supreme Court recently shed new light on appellate jurisdiction under Rule 304(a). The rule provides that, where “multiple claims” for relief are involved in a single action, an appeal may be taken from a final judgment as to a single “claim” upon the trial court’s written finding that there is no just reason for delaying an appeal. The court has previously explained that Rule 304(a) applies only to judgments that dispose of “separate, unrelated claims,” and that orders disposing only of “separate issues relating to the same claim” are not immediately appealable under the rule. (Emphasis in original.) In re Marriage of Leopando, 96 Ill. 2d 114, 119 (1983).

In Carle Foundation v. Cunningham Township, 2017 IL 120427, the trial court issued a Rule 304(a) finding after granting the plaintiff’s request for a declaratory judgment as to which section of the Property Tax Code governed certain claims in the plaintiff’s complaint. The Supreme Court held, however, that a declaration as to what law governs a complaint “resolves nothing other than the standard by which the underlying claim will be adjudicated.” Carle Foundation, 2017 IL 120427, ¶ 18. Thus, the trial court had merely resolved an “issue” that was ancillary to the plaintiff’s underlying “claims,” and its Rule 304(a) finding was improper. Id. 

The parties in Carle disputed whether a charitable-use tax exemption applied to four parcels of land that were used in connection with the operation of a hospital for the tax years 2004 through 2011. The plaintiff argued that the parcels qualified for an exemption that had recently been created for hospitals under section 15-86 of the Property Tax Code. See 35 ILCS 200 15-86 (eff. June 14, 2012). The defendants maintained that section 15-86 did not apply retroactively, and that the case was controlled by the older charitable purposes exemption, under section 15-65 of the Property Tax Code. See 35 ILCS 200 15/65 (eff. Jan 1, 1994).

The plaintiff’s fourth amended complaint included 35 counts. Count II sought a declaration that section 15-86 was applicable to the parcels for the tax years in question. The remaining counts sought declarations that an exemption the plaintiff had received prior to 2004 was never lawfully terminated, and that the parcels actually qualified for an exemption under section 15-65. Additionally, the plaintiff alleged the breach of a 2002 settlement agreement that it had entered with various local taxing authorities.

Shortly after filing its fourth amended complaint, the plaintiff filed a motion for summary judgment on count II and requested a Rule 304(a) finding. In granting the plaintiff’s motion, the trial court acknowledged that its ruling would not resolve the merits of all of the plaintiff’s claims. The court nonetheless granted a Rule 304(a) finding, reasoning that the applicable substantive law needed to be ascertained as a threshold matter before the case could proceed.

The appellate court concluded that it had appellate jurisdiction under Rule 304(a), but it reversed the trial court’s ruling after concluding that section 15-86 was unconstitutional. The Supreme Court then vacated the appellate court’s decision on the basis of its holding that the trial court’s Rule 304(a) finding was improper, and that the appellate court therefore lacked jurisdiction to review the order granting the plaintiff’s motion for summary judgment.

The Supreme Court emphasized, “ ‘it is difficult to conceive of a situation in which the issues are more interrelated’ than the pleading of a claim and the determination of what law governs that claim.” Carle Foundation, 2017 IL 120427, ¶ 23 (quoting Leopando, 96 Ill. 2d at 119). Hence, by requesting a declaratory judgment that section 15-86 was applicable to the parcels for the tax years in question, the plaintiff sought to dispose only of an “issue” that was related to the plaintiff’s “exemption claims.” Carle Foundation, 2017 IL 120427, ¶ 23.

The Supreme Court went on to note that the plaintiff’s request for declaratory judgment was improper in the first instance. The court explained that a declaratory judgment action must relate to an “actual controversy,” which refers to a “concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof.” Carle Foundation, 2017 IL 120427, ¶ 28. (quoting Underground Contractors Association, Ill. 2d 371, 375 (1977)). However, count II of the plaintiff’s fourth amended complaint was brought only to facilitate interlocutory appellate review of the trial court’s determination; it was not properly aimed at securing a declaration of unresolved rights as to an open legal controversy. Carle Foundation, 2017 IL 120427, ¶ 31.

Finally, the Supreme Court declined the parties’ shared request to address the merits of the case under the court’s supervisory authority. First, the court noted that it was not inclined to accommodate “piecemeal litigation.” Second, the court noted the issue surrounding the constitutionality of section 15-86, which had been the focus of the appellate court’s decision. However, the court’s long-standing rule is that cases should be decided on non-constitutional grounds whenever possible. Because plaintiff’s fourth amended complaint included claims that had nothing to do with the constitutionality of section 15-86, the court concluded that a ruling on the merits would be “decidedly premature.” Id. ¶ 34.

On May 16, the ALA will host a roundtable luncheon and panel discussion featuring the Judges of the Seventh Circuit Court of Appeals. Attendees at the luncheon will have the opportunity to speak with the judges about appellate practice in an informal setting. The event will take place at the Union League Club in Chicago, beginning at 12:30 p.m. and ending at 2 p.m.

Attendees will receive one hour of MCLE credit.

For more information about any of the events and to register, please click here.

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s May Term, which begins Tuesday, May 9, 2017, with oral arguments scheduled for May 9, 10, 11, 16 and 17, 2017. A total of 15 cases will be heard – 9 criminal and 6 civil.

The following civil cases are scheduled for argument this Term:

People ex rel. Lisa Madigan v. Wildermuth—No.120763—May 10

Rozsavolgyi v. The City of Aurora—No. 121048—May 11

Manago v. The County of Cook—No. 121078—May 11

Cochran v. Securitas Security Services USA, Inc.—No. 121200—May 16

Aspen American Insurance Co. v. Interstate Warehousing, Inc.—No. 121281— May 17

Illinois Landowners Alliance v. Illinois Commerce Commission—Nos. 121302, 121304, 121305, 121308 (cons.)—May 17

The following criminal cases are scheduled for argument this Term:

In re Linda B.—No. 119392—May 9

People v. Willis Reese—No. 120011—May 9

In re Destiny P.—No. 120796—May 9

People v. Matthew Gray—No. 120958—May 9

People v. Richard Holman—No. 120655—May 10

People v. Dennis Bailey—No. 121450—May 10

In re Jarquan B.—No. 121483—May 10

People v. Fernando Casas, Jr.—No. 120797—May 16

People v. Byron Boykins—No. 121365—May 16

Below is a summary for one civil case, Cochran v. Securitas Security Services USA, Inc., and one criminal case, People v. Richard Holman. Summaries for these cases and others pending with the Illinois Supreme Court can be found in our Cases Pendingpublication, accessible to ALA members on the ALA's website.

Cochran v. Securitas Security Services USA, Inc.

This case raises the question of whether Illinois should recognize a cause of action for negligent interference with the possession of a corpse. In a published opinion, the Fourth District Appellate Court recognized such a cause of action, departing from prior decisions of the First, Second, and Third Appellate Districts which held that willful and wanton conduct by the defendant was a prerequisite to such a claim.

Plaintiff, the mother of the decedent, filed suit against Defendant, claiming that they negligently mishandled her son’s remains such that they were switched with those of another decedent, resulting in an unwanted cremation. Plaintiff alleged that Defendant violated its duty not to interfere with her right to possession of her son’s remains by failing to follow certain procedures with respect to the handling and transferring of decedents’ remains. Plaintiff did not allege that the defendant acted willfully or wantonly. Defendant moved to dismiss, arguing that plaintiff failed to state a cause of action. The trial court agreed, dismissing Plaintiff’s complaint with prejudice, and finding that Plaintiff could not allege any facts which would give rise to a duty owed on the part of the Defendant. Plaintiff appealed.

Reversing, the Fourth District Appellate Court disagreed, holding that requiring a plaintiff to plead willful and wanton conduct is no longer consistent with the current state of the law. In so holding, the Court departed from prior rulings of the First, Second, and Third District Appellate Court, which uniformly have held that a cause of action for negligent interference with possession of a corpse is not recognized under law. The Fourth District Appellate Court held that the rationale for requiring such a heightened pleading standard had been eroded, as evidenced by the decisions of several other states providing for a cause of action based upon the negligent mishandling of a corpse. It therefore held that “the more modem view supports the position taken by plaintiff in the instant case and recognizes an ordinary negligence cause of action arising out of the next of kin’s right to possession of a decedent’s remains,” and that the cases relied upon by the trial court “do not take into account the evolution of the law in this area and fail to persuade us to accept defendant's argument that circumstances of aggravation are necessary.”

People v. Richard Holman

In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court held that mandatory-life-without-parole sentences for juveniles (under the age of 18) violated the Eighth Amendment.  Montgomery v. Louisiana, 136 S. Ct. 718 (2016), held that Miller had adopted a substantive rule that applied retroactively.  Drawing a line between children whose crimes reflected transient immaturity and those reflecting permanent incorrigibility, the Court explained that an individualized hearing about the juvenile's youth and attendant considerations was required to separate out those who could be sentenced to life-without-parole and those who could not.  In Illinois, a criminal defendant can file a successive postconviction (PC) petition only with leave of court, 725 ILCS 5/122-1(f), which the court may grant if defendant demonstrates cause for failing to bring the claim(s) in the initial PC petition and prejudice resulting from that failure.

In July 1979, weeks shy of his 18th birthday, Richard Holman and a codefendant burglarized a farmhouse in Southern Illinois and murdered its 83-year-old resident.  Holman confessed to committing seven murders with his codefendant (of which he was later convicted of three, including this case).  For the instant case, Holman and his codefendant were tried and convicted for first degree murder in 1981; because of his age he was ineligible for the death penalty and faced a 20-to-40-year sentencing range (for which he could earn day for day credit) and the judge, in his discretion, could impose a natural life sentence if Holman was convicted of multiple murders (as he was here).  The trial judge received a detailed pre-sentencing investigation (PSI) report regarding Holman's age, background, delinquency record, and family circumstances; statutory-required mitigating factors at the time did not mention youth.  The trial judge acknowledged considering the PSI, found no mitigating factors were present, and commented that this defendant could not be rehabilitated before imposing a natural life sentence. Neither Holman's direct appeal nor his initial PC petition challenged his sentence on Eighth Amendment grounds.

In October 2010 (before Miller), Holman sought leave to file a successive PC petition, challenging the statute under which he was sentenced as unconstitutional under the Sixth and Fourteenth Amendments; on appeal from denial of leave to file (before Miller), Holman argued that the sentencing statute was void ab initio under the Eighth Amendment; the post-Miller PLA argued that the sentencing statute violated the Eighth Amendment.  In January 2015, the Illinois Supreme Court denied leave to appeal but remanded to the appellate court to reconsider in light of People v. Davis, 2014 IL 105595 (rejecting Eighth Amendment facial challenge to sentencing statute mandating natural life sentence, but holding Miller was retroactively applicable and satisfied cause-and-prejudice for juvenile defendant sentenced to mandatory natural life raising as-applied Eighth Amendment challenge).

On remand, the appellate court excused Holman's forfeiture and upheld Holman's discretionary natural life sentence imposed in April 1981.  The court held that Miller provided an illustrative list of factors related to a juvenile defendant's youth without requiring courts to consider any set list of factors.  The court held that the sentencing hearing comported with Miller because Holman's age and other mitigating factors were known by the court and because Miller/Montgomery did not prohibit a natural life sentence for all juvenile offenders.

Before the Illinois Supreme Court, Holman argues that he is entitled to a new sentencing hearing because sentencing courts must consider the Miller factors, and the trial court did not do so in his case.  Alternatively, Holman argues he is entitled to a new sentencing hearing because the sentencing court did not even consider youth and its attendant circumstances as a mitigating factor.  The State argues that the as-applied Eighth Amendment claim is forfeited because it was not presented in any level of review prior to this court's supervisory order.  Forfeiture aside, the State asserts that the Rehabilitation Clause of article 1, section 11 of the Illinois Constitution and decades of Illinois precedent on juvenile justice reflect that the Illinois sentencing scheme pre-Miller comported with Miller's requirements. Additionally, the sentencing judge's comment that Holman cannot be rehabilitated (and the record of his extensive delinquency record and multiple murders) is precisely the finding of permanent incorrigibility justifying a natural life sentence under Miller/Montgomery.  Finally, the State argues that rather than grant a new sentencing hearing as Holman requests, the Court should remand for additional PC proceedings solely regarding whether Holman qualifies as the rare juvenile offender who is permanently incorrigible because only if he is not is there an Eighth Amendment violation warranting a new, full sentencing hearing.  An amicus brief in support of Holman filed by the Bluhm Legal Clinic at Northwestern School of Law asserted, among other things, that the Court should flatly ban natural life sentence for juvenile offenders.

On May 10, the ALA and the Sangamon County Bar Association will co-sponsor a roundtable luncheon and panel discussion featuring the Justices of the Illinois Appellate Court’s Fourth District. Attendees at the luncheon will have the opportunity to speak with the justices about appellate practice in an informal setting. The event will take place at Maldaner's Restaurant, 222 South Sixth Street in Springfield, beginning at noon and ending at 1:30 p.m.
 
On May 19, the ALA will host the same event featuring the Justices of the Illinois Appellate Court’s Fifth District. The event will take place at The Gateway Center, 1 Gateway Drive in Collinsville, beginning at noon and ending at 2 p.m.
 
Attendees to the luncheon will receive one hour of MCLE credit.
 
Following each luncheon, Tyler Technologies will provide an e-filing presentation, covering such topics as: (1) filing fees; (2) the Illinois Supreme Court mandate requiring e-filing; (3) implementation of the mandate around the State; (4) the mechanics of e-filing; and (5) third-party vendors who can be retained to provide e-filing services to the bar. The event will run from 1:45 p.m. until 3:15 p.m. in Springfield and from 2:15 p.m. until 3:45 p.m. in Collinsville. 
 
This presentation is free to attendees, including those who wish to attend only the e-filing presentation.
 
Attendees to the e-filing presentation will receive 1.5 hours of MCLE credit.

On May 16, the ALA will host a roundtable luncheon and panel discussion featuring the Judges of the Seventh Circuit Court of Appeals. Attendees at the luncheon will have the opportunity to speak with the judges about appellate practice in an informal setting. The event will take place at the Union League Club in Chicago, beginning at 12:30 p.m. and ending at 2 p.m.
 
Attendees will receive one hour of MCLE credit.
 
Finally, on May 25, the ALA will host a brown bag lunch featuring the e-filing presentation from Tyler Technologies. The event will take place at Mayer Brown LLP, 71 South Wacker Drive, 32nd Floor in Chicago, beginning at noon and ending at 1:30 p.m.
 
Attendees to the e-filing presentation will receive 1.5 hours of MCLE credit.
 
For more information about any of the events and to register, please click here.

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, appeared on Chicago Tonight last night to discuss the confirmation of Judge Neil Gorsuch, formerly of the United States Court of Appeals for the Tenth Circuit, to the United States Supreme Court.

If the embedded video does not work, you may watch here.

By Kevin R. Malloy
Partner, Forde Law Offices LLP

Can the appellate court allow a Rule 306 interlocutory appeal of a temporary order setting child support and maintenance payments? After first doing so, the First District took a closer look and decided that it could not, and thus dismissed an appeal for lack of jurisdiction in the case of In reMarriage of Dougherty, 2017 IL App (1st) 161893.

Rule 306(a)(5) allows parties to petition for leave to appeal from “interlocutory orders affecting the care and custody of or the allocation for parental responsibility for unemancipated minors.” Ill. Sup. Ct. R. 306(a)(5) (emphasis added). At issue in In re Marriage of Dougherty was whether temporary orders entered by the trial court awarding child support and spousal maintenance could be appealed under that Rule. No issues were raised regarding custody.

After the appellate court had granted the petitioner’s petition for leave to appeal, the respondent moved for reconsideration and/or to dismiss for lack of jurisdiction. The court took the motion with the case. In its opinion, after first noting its obligation to consider its jurisdiction at any time, the appellate court framed the jurisdictional issue as whether the phrase “orders affecting the care and custody” of minor children in Rule 306(a)(5) referred only to orders relating to the custody of minor children. The court held that it does, and dismissed the appeal.

The petitioner had argued that the temporary child support order concerned the “care” of the child, as did maintenance, since it affected the financial circumstances of the custodial parent. But the petitioner did not cite any relevant authority to support his position. In contrast, the First District pointed to a number of sources to support its construction of Rule 306(a)(5).

The court first noted that the Illinois Supreme Court in Gill v. Gill, 56 Ill. 2d 139, 143-44 (1973), stated that the “obligation of the father to support his minor child is not affected by the decree…granting the care and custody of his child.” Thus, that use of language was relevant in clarifying that “care and custody” is separate from support. In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 9.

Next, the First District pointed to Rules Committee comments to the March 2016 amendment to Rule 306, which reflected changes of the term “custody” to “allocation of parental responsibilities” in the Illinois Marriage and Dissolution of Marriage Act. Those comments specifically focused on the term “custody”, and thus did not suggest that Rule 306(a)(5) extended into temporary orders on “child support and maintenance.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶¶ 10-11.

Further, the First District noted, Rule 306(a)(5) provides that once the petition for leave to appeal has been granted, Rule 311(a)’s expedited procedures apply. Rule 311(a), in turn, states that the expedited procedures in that rule shall apply to “interlocutory appeals in child custody or allocation of parental responsibilities cases from which leave to appeal has been granted pursuant to Rule 306(a)(5).” Ill. Sup. Ct. R. 311(a). That rule further provides, in contrast, that a reviewing court may use the expedited procedures in an appeal from an order “affecting other matters, such as support.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 12 (quoting Rule 311(a) (emphasis by court)).

Finally, the Rules Committee’s comments for Rule 311(a) offered additional guidance, noting that its 2010 amendment was “intended to clarify that the rule addresses only the procedures to be followed in order to expedite disposition of child custody appeals.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 14.

Interpreting Supreme Court Rules the same as statutes, the appellate court applied the doctrine of in pari materia to read Rule 306(a)(5) and Rule 311(a) together, so as to give them “harmonious effect.” The First District concluded that both rules “relate to expedited interlocutory appeals involving custody or the allocation of parental responsibilities,” and that “neither rule, nor any comment suggests that a temporary support of maintenance order may be brought independently.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 15. Thus, the court would not read additional language into the rules in order to confer jurisdiction. Id. Considering the language of the rules together, the court held that “Rule 306(a)(5) does not provide for petitions for leave to appeal from temporary support and maintenance orders.” Id. ¶ 16. Thus, it did not have jurisdiction and dismissed the appeal.

After a successful event in April 2016, the Illinois Supreme Court Commission on Professionalism is again hosting “The Future Is Now” Conference. On May 18, the Commission will host the conference focusing on innovations and practices impacting the delivery of legal services and the legal profession as a whole.
 
The Commission will host nine speakers with each addressing different issues impacting the profession, including legal insurance, online dispute resolution, alternative fee arrangements, legal project management, competency-based learning, immigration services, and practice management tools that can make attorneys more competitive in the current legal climate.
 
The conference will be held at the Art Institute Rubloff Auditorium (230 South Columbus Drive in Chicago), beginning at 10 a.m. and ending at 3:30 p.m.
 
The conference will be broken up into four sessions. Each session will consist of two to three talks followed by a town hall meeting where attendees will have expanded opportunities to question, comment, and react to each of the speaker talks. The complete conference schedule is posted on the event website.
 
The registration fee is $75 and will cover the cost of a light breakfast, lunch, and refreshments. Registration is currently open; however, seating is limited. Last year, the conference reached capacity and opened up a waiting list more than one month prior to the event.
 
The conference will be approved for 5.0 hours of professional responsibility CLE credit in Illinois. To receive credit, attendees must complete conference feedback forms, which will be sent to participants via email along with their certificates of attendance after the event.
 
For additional questions and concerns, please email Lindsay Shaw (lindsay.shaw@2civility.org) or call her at (312) 363-6210.

On Tuesday, April 4, the ALA will host a roundtable luncheon and panel discussion featuring the Justices of the Illinois Appellate Court’s Second District and the Second District’s Research Director. Attendees at the luncheon will have the opportunity to speak with the justices about appellate practice in an informal setting. The event will take place in the Heritage Ballroom of the Centre of Elgin in Elgin, beginning at noon and ending at 1:30 p.m.

Attendees will receive one hour of MCLE credit.

Following the luncheon, Tyler Technologies will provide an e-filing presentation, covering such topics as: (1) filing fees; (2) the Illinois Supreme Court mandate requiring e-filing; (3) implementation of the mandate around the State; (4) the mechanics of e-filing; and (5) third-party vendors who can be retained to provide e-filing services to the bar.

This presentation is free to attendees, including those who wish to attend only the e-filing presentation.

Attendees will receive 1.5 hours of MCLE credit.

On Friday, April 21, the ALA will host a luncheon featuring Erwin Chemerinsky, renowned lecturer on the United States Supreme Court and the Dean of the University of California, Irvine School of Law. Dean Chemerinsky will discuss the United States Supreme Court’s current docket and other topical issues on the High Court.

The event will take place at the Union League Club in Chicago, beginning at noon and ending at 1:30 p.m.

Attendees will receive one hour of MCLE credit.
On Friday, April 28, the ALA will host an advanced appellate practice seminar, which will feature presentations on such topics as remedies in the Illinois Supreme Court, interlocutory appeals, legal ethics on appeal and preserving issues for appellate review.

Presenters include current ALA President Joanne Driscoll, former ALA Presidents Bill Hardy, Karen K. DeGrand, and Michael A. Scodro, ALA Director Don R. Sampen, former Cook County Circuit Court Judge Rita Novak, Kathy Byrne, Isaac Melton, and Douglas Richmond.

The seminar will take place at Quarles & Brady at 300 North LaSalle Street, Suite 4000 in Chicago, beginning at 1 p.m. and ending at 5 p.m.

Participants will receive 3.75 hours of MCLE credit, including .75 hours of professional responsibility credit.

For more information about any of the events and to register, please click here.

By Katherine A. Grosh
Partner, Beermann Pritikin Mirabelli Swerdlove LLP

In P.H. Glatfelter Co. v. Windward Prospects Ltd., 847 F.3d 452 (7th Cir. 2017), the Seventh Circuit addressed three total appeals—two taken by P.H. Glatfelter Co. (Glatfelter) arising out of discovery-related orders and one cross-appeal taken by non-party subpoena respondent Windward Prospects, Ltd. (Windward), who sought costs and fees from Glatfelter under Federal Rule of Civil Procedure 37—all three of which the Seventh Circuit dismissed for lack of jurisdiction.

The underlying case involved an ongoing multi-party environmental cleanup being performed on the Lower Fox River in Wisconsin pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under CERCLA, the parties responsible for creating the hazard and potentially responsible parties (PRPs) may be liable for the full costs of remediation. Glatfelter, 847 F.3d at 453-54.

Paper manufacturer Appvion, Inc. (Appvion), a PRP, sued other PRPs, including Glatfelter, in the Eastern District of Wisconsin, to recover the cleanup costs it incurred and to require other PRPs to pay for future remedial work. Id. at 454. Glatfelter sought discovery from Windward, an English entity conducting Appvion’s defense of the CERCLA claims and managing its cleanup operations, relating to Appvion's costs and possible offsets from insurance, settlements or indemnification payments in connection with the underlying cost recovery action. Id.

When Glatfelter could not obtain compliance with the subpoena it attempted to issue to Windward, it instituted an ancillary proceeding in the District of Massachusetts. Id. at 455. In addition to seeking an order compelling Windward to respond to the subpoena, Glatfelter sought to transfer the case to the Eastern District of Wisconsin, where the main cost recovery action was pending. Id. 

The district court transferred the case, and the same judge presiding over the recovery action in the Eastern District of Wisconsin denied the motion to compel, concluding that the court lacked personal jurisdiction over Windward and that Glatfelter had not established that the documents it sought were not already subject to production by Appvion. Id. Glatfelter filed a motion to reconsider, which the court also denied. Glatfelter appealed. Id.

The Seventh Circuit’s analysis began by reciting the general rule that pretrial discovery orders are not final in terms of winding up the underlying lawsuit, as well as the exception to that rule under the collateral order doctrine, where an order “conclusively determine[s] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment.” Id. at 455 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

Examining opinions from other circuits that had directly considered the issue, the Seventh Circuit held that where a district court enters an order in an ancillary action, and that district court is located in the same circuit as the district court handling the main action, the order in the ancillary action is interlocutory and not immediately appealable. Id. at 456-57.

According to the Seventh Circuit, the problem for Glatfelter was that the ancillary action was transferred from the District of Massachusetts to the Eastern District of Wisconsin prior to the appeal. In the Seventh Circuit, pretrial discovery orders are appealable “only where they were issued by a district court in an ancillary proceeding and said district court was not within the jurisdiction of the circuit court having appellate jurisdiction to review the final adjudication of the main action.” Id. at 456 (emphasis original). 

Thus, the three appeals were dismissed for lack of jurisdiction because the ancillary action was in the same district court presiding over the main action (the cost recovery action), and the denial of Glatfelter’s motions would be reviewable on appeal from the final judgment in the main action. Id. at 459.

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, and Former Illinois Solicitor General Carolyn Shapiro, now a professor at Chicago-Kent College of Law, appeared on Chicago Tonight last night to discuss the United States Supreme Court confirmation hearings for Judge Neil Gorsuch, current judge for the United States Court of Appeals for the Tenth Circuit.


If the embedded video does not work, you may watch here.