There’s a short opinion recently out of the Southern District of Ohio that neatly highlights the rule that when a case is removed to federal court, the federal court cannot extend any order issued by the state court if that order would not have been allowed under the federal rules of civil procedure.

Total Quality Logistics, an Ohio company that brokers freight, sued Covar Brokerage, a competitor, and several of TQL’s former employees in Clermont County common pleas for violating non-compete agreements. The state court granted TQL’s ex parte motion for a temporary restraining order. Covar then removed the case to the Southern District of Ohio under federal diversity jurisdiction. TQL asked the federal court to extend the restraining order. But the federal court held that it couldn’t extend the restraining order because the original motion couldn’t have been granted under the federal rules.

Under Federal Rule of Civil Procedure 65(b), a federal court can only grant an ex parte motion for a restraining order if the moving “attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” (It’s worth noting that Ohio’s rules have the same requirement.) But the motion granted by the Clermont County court didn’t have that certification because TQL hadn’t made any effort to give Covar notice. TQL’s attorney explained at the state court hearing that he didn’t sent notice because Covar tends to respond by filing their own restraining orders in different state courts to stop the Ohio court proceedings.

The Southern District held that TQL’s explanation at the hearing would not have complied with Rule 65(b)’s written certification requirement. And “[o]nce a case has been removed to federal court, its course is to be governed by federal law, including the Federal Rules of Civil Procedure.” Because the original state-court order could not have been granted under the federal rules, the federal court didn’t have the power to extend that order.

Read the decision here.

If you’re fighting a motion to dismiss should you start by filing an opposition or amending your complaint? That’s one question raised by the Ninth Circuit’s recent decision in a decade-long water-rights dispute between the Navajo Nation and the Department of the Interior. The Tribe sued the federal government in 2003 to challenge water delivery guidelines issued by Interior for the Colorado River. The Tribe alleged that these guidelines violated the National Environmental Policy Act (NEPA for us lawyers) and the federal government’s tribal trust duties. After a decade of fruitless settlement talks, the district court dismissed the Tribe’s claims for lack of standing then denied the Tribe’s motion for leave to amend its complaint to fix the standing problems. The Ninth Circuit affirmed.

There is plenty in this opinion to talk about (starting with the Ninth Circuit’s analysis of standing for NEPA cases) but let’s focus on one part: the denial of the Tribe’s motion to amend its complaint. A motion to amend a complaint is made under Rule 15 and leave to amend is “freely give[n].” But after judgment has been entered then a Rule 15 motion can only be made after judgment has been reopened. And when the district court dismissed the Tribe’s complaint—without granting leave to amend—the district court also entered final judgment. So the Tribe moved for relief from judgment under Rule 60(b)(6), which allows a court to grant relief for “any other reason that justifies relief.”

It’s not easy to win a Rule 60(b)(6) motion—judges don’t like deciding cases more than once. And the Ninth Circuit reviewed the district court’s decision for abuse of discretion, the most deferential standard of review. (I wrote about how this standard changes the appellate calculus here.)

Now the Tribe had already amended its complaint twice—first to update the pleading after a decade of settlement talks* and then to voluntarily strike one of its claims. Those amendments had nothing to do with standing but the Ninth Circuit pointed to them as solid support for the district court’s decision: The Tribe “had ample opportunity at those junctures to address the deficiencies in its pleading—deficiencies which . . . the defendants had identified in their motions to dismiss.”

The double hurdle of a Rule 60(b) standard and abuse of discretion review was never going to be easy to overcome, but the Ninth Circuit’s decision still seems somewhat underbaked. When a plaintiff is hit with a Rule 12(b) motion to dismiss, their lawyer will consider amending the complaint instead of defending the complaint. Fair enough—this happens. But the Ninth Circuit’s decision tips the balance a bit towards amendment without explaining why that’s a better balance. On top of that, a plaintiff in the Ninth Circuit is going to hesitate before amending any part of their complaint without strengthening the rest of their claims. Litigation should end, but encouraging plaintiffs to tinker with their complaint during the lawsuit seems like an odd way to keep that ending in sight.

Here’s the Ninth Circuit’s decision.

* I’m taking “amended” at its face value here—Rule 15(d) allows a “supplemental” pleading to cover “any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.”

When you’re working with the Federal Rules of Civil Procedure you will notice a recurring theme: Timing is everything. The Sixth Circuit has issued a decision in a case that teaches two useful lessons about timing, discovery, and summary judgment: You can file a Rule 12(b)(6) motion to dismiss before discovery but if it uses affidavits and other evidence it might not remain a motion to dismiss. And if it doesn’t remain a motion to dismiss, an opposing counsel who knows the rules has a powerful weapon to defeat what’s now your newborn motion for summary judgment.

Vicki Moore, director of the Shelby County Animal Care Coalition, sued Shelby County, Kentucky, in state court alleging the county had broken federal and state law by wiping a county-run animal shelter’s surveillance videos. Shelby County removed to federal court, then—before any discovery—moved for summary judgment. The district court granted the motion and dismissed Moore’s claims with prejudice. Moore appealed and the Sixth Circuit reversed and remanded, holding that the district court shouldn’t have granted summary judgment before discovery.

Now you might have asked why the district court ruled on summary judgment before discovery instead of on a motion to dismiss. It’s not a small difference—dismissal for failure to state a claim often ends with leave to amend the complaint but summary judgment ends the case. Doesn’t summary judgment only happen after at least some discovery? Well, usually, yes. But a district court may rely on documents outside the pleadings on a Rule 12(b)(6) motion to dismiss as long as the judge converts the motion to dismiss to a motion for summary judgment. (There are some documents that won’t trigger this but that’s another article.) It’s not discretionary: If your opposing counsel files a motion to dismiss that comes with evidence as well as briefing, and the court decides it will read that evidence and use it in the ruling, then your opposing counsel has just converted that motion to summary judgment. That’s not quite what happened here—Shelby County submitted affidavits and properly filed a motion for summary judgment instead of a motion to dismiss—but it’s why the court’s ruling was on summary judgment even though discovery hadn’t started, much less ended.

The Sixth Circuit’s opinion turns on this procedural oddity and gives some attention to part of Rule 56 that lawyers should never overlook in cases facing summary judgment before discovery. Federal Rule of Civil Procedure 56(b) allows you to file for summary judgment “at any time,” yes, even before discovery begins. But Rule 56(d) allows you to defend against summary judgment by explaining that “for specified reasons, [the defending party] cannot present facts essential to justify its opposition . . . .” Not having had any discovery is a pretty good reason why you can’t defend against summary judgment.

Rule 56(d) does allow the court to grant an early summary judgment, but the Sixth Circuit held that, in this case, the district court abused its discretion: “[A]lthough [the Sixth Circuit] has upheld cases grating summary judgment prior to discovery . . . such cases are extraordinary and not the norm. . . . Common sense dictates that before a district court tests a party’s evidence, the party should have the opportunity to develop and discover the evidence.” Moore had explained that she needed discovery to defend against summary judgment, and the Sixth Circuit held that the district court should have given her the chance to have that discovery. Now the case goes back to the district court. Something tells me that we’ll see another round of summary judgment though—but this time with the facts. Until then, the Sixth Circuit’s opinion is here.

You might remember that a couple of weeks ago the Supreme Court issued an opinion explaining which time limits for an appeal were truly jurisdictional (any time limit created by a statute) and which were merely “mandatory claim-processing rules” (any time limit created by a rule). The case was Hamer v. Neighborhood Housing Services of Chicago, and I wrote about it (and Justice Ginsburg’s primer on waiver versus forfeiture) here [LinkedIn mirror post]. The Sixth Circuit just issued an opinion addressing an appellate timing rule and you can tell it was written with a copy of Hamer close by.

In Martin v. Sullivan the Sixth Circuit held that the rules say if you want an extension of time to file a notice of appeal, you have to ask. Martin (a federal inmate) sued a state judge, the state prosecutor, and his (former) criminal appellate counsel, alleging they plotted against him during plea bargaining. The Eastern District of Michigan held the claim was an impermissible federal-court civil challenge to a state criminal conviction and dismissed. The Sixth Circuit affirmed.

After the district court dismissed his claim, Martin filed a notice of appeal—but only after the deadline had passed, and without filing a motion for an extension. The Sixth Circuit issued a show cause order asking why it should accept the late appeal. Martin explained that his notice of appeal was late because he hadn’t received timely notice of the judgment. But—the Sixth Circuit explained—there is a timing rule that covers exactly this problem, and it is a problem for the district court to solve. Federal Rule of Appellate Procedure 4(a)(6) authorizes the district court (even though it’s an appellate court rule) to reopen the time to file an appeal for 14 days if the would-be appellant wasn’t properly notified of the judgment they are trying to appeal. That rule is based on a statute that authorizes the district court to reopen the time for appeal “upon motion filed within 180 days after entry of the judgment or order . . . .”

The Sixth Circuit focused on one key word in both the statute and the rule: “motion.” A near-twin rule for criminal appeals states that a district court can extend the appeal deadline in a criminal case “with or without motion and notice . . . .” But the civil appeals rule says “motion,” and Martin had never filed a motion—he just filed the notice of appeal. Martin hadn’t asked for an extension from the district court, and he couldn’t get an extension from the circuit court, so his appeal was too late. (Intriguingly for cert petition watchers, the Sixth Circuit pointed to opinions showing that three other circuits would have taken the appeal.)

Both the rule and the statute require a motion, and there was no real debate that the procedure was jurisdictional. So how do we know the Sixth Circuit was reading Hamer even though they didn’t cite the decision? Every last cite to the rule was dutifully paired with an “accord” cite to the United States Code. See the citations here.

There’s a case just out of the First Circuit that shows how procedural posture can change the standard of review on appeal. Mrs. M sued the Falmouth school district for violations of the Individuals with Disabilities Education Act. The district court granted summary judgment to the school district and the First Circuit affirmed.

Then Mrs. M did something that seems fairly reasonable: she asked for permission to file an amended complaint that addressed the flaws pinpointed by the First Circuit’s decision. This is a common tactic after losing a motion to dismiss—but Mrs. M wasn’t trying to fix problems with how she stated her claim, she was trying to fix problems with the substance of her claim. That is less common. The district court denied Mrs. M’s motion and she appealed.

What’s interesting is that the district court denied the motion in a way that changed the standard of review on appeal. Usually a court of appeals reviews a decision allowing or refusing an amended complaint for abuse of discretion. Abuse of discretion is the most forgiving standard of review. But the district court based its ruling on the law of the case, a legal rule that says an issue should only be decided once in a lawsuit. And a court of appeals reviews a decision based on law of the case without deference, the least forgiving standard.

The standard of review can make a big difference on appeal. Colter Paulson, a Cincinnati-based member of Squire Patton Boggs’ appellate group, writes on the Sixth Circuit Appellate Blog that “[a]ppellate lawyers think about arguments in terms of the applicable standard of review . . . .” And in the Sixth Circuit, “the standard of review matters”: The Sixth Circuit is likely to affirm an opinion reviewed for abuse of discretion but it reverses opinions reviewed without deference a striking 20% more often than any other standard. That short paragraph at the start of your argument is one of the most valuable parts of your appellate brief second only to the fact statement.

In Mrs. M’s case, the change in the standard didn’t help her after all: The First Circuit held that the district court was right under either standard. But it’s not hard to picture a scenario where this procedural posture changes the outcome of the case. And you’ve probably read one—any case where the appellate opinion says something to the effect that ‘we might not have done this, and we understand why the appellant is unhappy, but it’s not an abuse of discretion. Affirmed.’