Almy v. Davis, 63 Va.App. 45

Background

Kevin Almy, pro se, filed a § 1983 action and repeatedly filed numerous motions and documents, prompting the court to order him to obtain leave before filing further motions.
On September 27, 2013 the court issued eleven interlocutory orders resolving various claims; Judge Mahan adopted the magistrate judge’s report and recommendation.
Almy sought leave to file an application for a certificate of appealability (COA) to appeal those eleven orders under 28 U.S.C. §§ 1291 and 1292(b).
Defendants moved to strike Almy’s COA request, arguing it was procedurally improper, meritless, and violated the court’s leave-to-file order.
The Ninth Circuit previously dismissed Almy’s earlier appeal for lack of jurisdiction, finding the challenged orders were not final or appealable.
The magistrate judge denied Almy’s request for COA and granted defendants’ motion to strike, concluding the COA request was meritless, would not materially advance the litigation, and violated court orders; the motion was stricken from the record.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Sept. 27, 2013 orders are certifiable as final under § 1291 (or via Rule 54(b))	Almy sought certification to immediately appeal the eleven orders as final	Orders are not final; Rule 54(b) entry is unwarranted because claims are legally/factually related	Denied — orders are not final; Rule 54(b) relief inappropriate because claims are similar and risks of piecemeal appeals outweigh need for separate judgment
Whether interlocutory certification under § 1292(b) is appropriate	Almy argued interlocutory review of eleven orders is warranted	Defendants argued Almy failed to meet § 1292(b)’s three criteria and appeal would delay proceedings	Denied — Almy did not show a controlling question of law, substantial difference of opinion, or that immediate appeal would materially advance termination
Whether the court should strike Almy’s COA motion as procedurally improper	Almy characterized the filing as a response, not a motion, attempting to avoid the prior leave requirement	Defendants argued the filing violated the court’s leave order, was meritless, and cluttered the docket	Granted — court exercised inherent authority to strike fugitive documents and denied as sanction/management measure
Whether granting COA would materially advance litigation	Almy implied appellate review could resolve key issues now	Defendants argued appellate review unlikely to be accepted and would likely delay resolution	Held — granting COA would not materially advance the case and likely cause delay

Key Cases Cited

De Long v. Hennessey, 912 F.2d 1144 (9th Cir. 1990) (flagrant abuse of the judicial process by excessive filings may be sanctioned)
Couch v. Telescope, Inc., 611 F.3d 629 (9th Cir. 2010) (definition of a final decision under § 1291)
Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738 (9th Cir. 2008) (final decision ends litigation on the merits)
Morrison–Knudsen Co. v. Archer, 655 F.2d 962 (9th Cir. 1981) (Rule 54(b) reserved for unusual cases; avoid multiplying appeals)
In re Cement Antitrust Litig., 673 F.2d 1020 (9th Cir. 1982) (§ 1292(b) criteria for interlocutory certification)
City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882 (9th Cir. 2001) (district court must certify interlocutory appeal under § 1292(b) before appellate review)
Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402 (9th Cir. 2010) (court may strike or sanction filings to manage docket)
Atchison, Topeka & Santa Fe Ry. v. Hercules, Inc., 146 F.3d 1071 (9th Cir. 1998) (district court’s inherent power to manage its docket)