Pauly v. Vasquez
690 F. App'x 626
10th Cir.2017Background
- Daniel T. Pauly and Daniel B. Pauly sued Officer Mario Vasquez and others under civil‑rights theories after Vasquez photographed their deceased relative (Samuel Pauly) on his personal cell phone during a homicide investigation and texted the photos to friends; the photos later reached the media.
- The case was narrowed to a single privacy claim against Officer Vasquez challenging his conduct in taking and distributing the photos.
- Vasquez moved to dismiss the amended complaint on qualified‑immunity grounds; the district court granted the motion but expressly granted the Paulys leave to amend within 30 days, warning failure to amend could result in dismissal.
- The Paulys filed a notice of appeal from the dismissal order; the panel asked them to show cause why the appeal should not be dismissed for lack of jurisdiction under 28 U.S.C. § 1291.
- Both parties argued that, under this circuit’s “practical approach” from Moya v. Schollenbarger, the district court’s order was effectively final because amendment would be futile.
- The Tenth Circuit held the district court’s order was not a final, appealable order under § 1291 because it unambiguously granted leave to amend, so the appeal was dismissed for lack of jurisdiction and the Paulys should be given the opportunity to amend or stand on their pleadings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court’s dismissal order was a final, appealable order under 28 U.S.C. § 1291 | The Paulys argued the order was effectively final under the court’s practical‑finality approach (Moya) because the defects could not be cured and amendment would be futile | Vasquez agreed amendment would be futile and the dismissal was effectively final | Not final: the order expressly granted leave to amend, so it was not a final decision under § 1291; appeal dismissed for lack of jurisdiction |
Key Cases Cited
- Moya v. Schollenbarger, 465 F.3d 444 (10th Cir. 2006) (adopts a practical approach to determine finality of dismissal orders and states that an order expressly granting leave to amend is not a final decision)