JPMORGAN CHASE BANK, N.A., Plaintiff-Appellee, v. LARRY J. WINGET; LARRY J. WINGET LIVING TRUST, Defendants-Appellants.
No. 18-1143
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
April 10, 2019
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 19a0069p.06. Appeal from the United States District Court for the Eastern District of Michigan at Detroit. Nos. 2:08-cv-13845; 2:15-cv-13469—Avern Cohn, District Judge. Argued: December 5, 2018. Before: DONALD, LARSEN, and NALBANDIAN, Circuit Judges.
COUNSEL
ARGUED: Thomas V. Hubbard, DREW, COOPER & ANDING, P.C., Grand Rapids, Michigan, for Appellants. James W. Ducayet, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellеe. ON BRIEF: Thomas V. Hubbard, John E. Anding, DREW, COOPER & ANDING, P.C., Grand Rapids, Michigan, for Appellants. James W. Ducayet, Kendra L. Stead, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellee.
NALBANDIAN, Circuit Judge. This appeal is not the first time we have seen Larry Winget and JPMorgan Chase. Nor will it likely be the last. Winget‘s appeal du jour follows the district court‘s award of interim attorneys’ fees to Chase. But beсause this order is not a “final decision” under
I.
We need not revisit each “chapter in [this] longstanding dispute between the parties.” JPMorgan Chase Bank, N.A. v. Winget, 602 F. App‘x 246, 248 (6th Cir. 2015) (”Winget I“). Suffice it to say, Chase sued Winget “to recover millions of dollars owed to it under a credit agreement between Chase аnd entities owned and operated by [Winget].” JPMorgan Chase Bank, N.A. v. Winget, 678 F. App‘x 355, 356 (6th Cir. 2017) (”Winget II“). We decided the merits of the dispute and awarded Chase over $425 million. But there was a catch. While Winget‘s personal trust was on the hook for the full amount, Winget himself—protected by a limitation in his personal guaranty—owed Chase only $50 million (which he has since paid). Winget I, 602 F. App‘x at 258-59.
The pаrties then litigated attorneys’ fees—and whether Winget was personally liable for Chase‘s $12.6 million in fees and expenses. JPMorgan Chase Bank, N.A. v. Winget, 704 F. App‘x 410, 413-14 (6th Cir. 2017) (”Winget III“). Chase won again. Id. at 414-16. And we explained in that appeal that despite Winget‘s limited personal
But Chase‘s final judgment against Winget did not end this decade-long saga. Rather than use the trust‘s assets to pay Chase, Winget transferred the assets out of his trust and filed a new lawsuit asking the district court to declare that Chase had no recourse against those assets. In response, Chase filed counterclaims against Winget, alleging that the transfers were fraudulent conveyances designed to avoid paying Chase. The district court consolidated the new lawsuit with the previous litigation, characterizing it as “the functional equivalent of post-judgment proceedings.” (Order, R. 686 at 2.)
The parties are still engaged in these post-judgment proceedings. For example, Winget is fighting over what assets Chase can collect, how Chase can collect those assets, and what those assets are worth. And as thesе collection efforts drag on, Chase periodically asks the district court for more attorneys’ fees. The district court granted one such motion—awarding Chase another $2 million. These fees covered Chase‘s expenses from June 2015 through November 2016. But in doing so, the district court recognized the interim nature of the award, noting that “Chase‘s efforts to collect the Guaranteed Obligations are ongoing.” (Order, R. 773 at 1.) These ongoing efforts include charging orders, depositions, requests for constructive trusts, writs of executions on stocks, continued discovery on the value of the assets in the trust, a potential trial to determine Chase‘s damages from Winget‘s fraudulent conveyances, and more requests for attorneys’ fees. In sum, Chase‘s collection efforts continue in the district court.
II.
Winget now appeals the $2 million interim attorneys’ fees award. To start, however, we “must determine that [we] have jurisdiction before proceeding to the merits.” Lance v. Coffman, 549 U.S. 437, 439 (2007). Wе generally have jurisdiction only from “final decisions of the district courts.”
So how then do we determine when a fee award is appealable? In most cases, the timing of the award provides the answer. For example, the district court can award attorneys’ fees before it decides the merits of the case. We know the answer in this situation; “orders awarding interim fees in the course of litigation are not appealable.” Webster v. Sowders, 846 F.2d 1032, 1035 (6th Cir. 1988); see also In re Diet Drugs Prods. Liab. Lit., 401 F.3d 143, 156 (3d Cir. 2005) (collecting cases) (“[A]n interim award of attorneys’ fees is not, in almost all cases, an appealable final order because it foresees further and additional action by the district court, thus continuing, but not concluding, the fee litigation.“). And we would lack jurisdiction because the appeal would be too early. Instead, the general rule would apply: “a party is entitled to a single appeal, to be deferred until final judgment has been entered.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)).
The district court can also award attorneys’ fees at the same time it decides the merits of the case. Or it can give itself time to award attorneys’ fees at substantially the same time. Compare
Still, the district court can award attorneys’ fees aftеr it decides the merits of the case. This scenario is a familiar one—courts routinely resolve attorneys’ fees and costs post-judgment. See
This approach especially makes sense here, where the post-judgment proceedings, in large part, were prompted by a new lawsuit—albeit one the district court consolidated into the existing case. Thus, while “[a] postjudgment order might seem final by definition because the judgment is already behind it,” we still do not have a “final decision” under § 1291 until the district court completes the post-judgment proceedings. In re Asbestos Litig., 22 F.3d at 761 (quoting Cent. States, 971 F.2d at 6); Wright & Miller, Fed. Prac. & Proc. § 3916 (2d ed. 2018) (“Appeal ordinarily should not be available as to any particular post-judgment proceeding before the trial court has reached its final disposition. Once the district court has completely disposed of the matter, its decision should be found final.“).
This rule is easily applied in most post-judgment cases. A district court typically resolves all attorneys’ fees in a single, final order; completing the post-judgment proceedings. In this situation, we would have independent jurisdiction over an appeal
But he did not—and so we now find ourselves in a different scenario. Winget appeals an interim award of attorneys’ fees post-judgment, where the post-judgment proceedings are ongoing. In other words, this award of attorneys’ fees did not end the post-judgment litigation. Thus, applying the post-judgment completeness rule, this appeal is not from a final, appealable order.
The Eleventh Circuit confirmed this rule and result—dealing specifically with a post-judgment fee award. Mayer v. Wall Street Equity Grp., Inc., 672 F.3d 1222, 1224 (11th Cir. 2012) (per curiam) (citing Delaney‘s Inc. v. Illinois Union Ins. Co., 894 F.2d 1300, 1304 (11th Cir. 1990)). The district court had competing post-judgment motions for attorneys’ fees. After the district court denied one motion—but bеfore the court decided the other motion—the plaintiff appealed the decision. The Eleventh Circuit treated the post-judgment proceedings as a separate and “free-standing” lawsuit—and dismissed the appeal for lack of jurisdiction because the post-judgment litigation was ongoing—i.e., “the оther fee motion... remain[ed] outstanding.” Id. The Eleventh Circuit explained when the parties should appeal in this situation: “Only if a postjudgment order is ‘apparently the last order to be entered in the action’ is it final and appealable.” Id. (quoting Delaney‘s Inc., 894 F.2d at 1304 (quoting 9 Moore‘s Fed. Prac. ¶ 100.14[1], 196-97 (2d ed. 1988))). This rule makes sense, “to hold otherwise invites litigаnts to appeal every attorney‘s fees order, even if other requests remain outstanding, resulting in a proliferation of piecemeal or repetitious appeals.” Id.
This is the situation we face here. The district court has not completed the post-judgment litigation. The parties are still fighting over what assets Chase can collect, how Chase can collect those assets, and what those assets are worth. See supra p. 3. And Chase continues to incur attorneys’ fees in these collection efforts. Indeed, both parties admit that the post-judgment litigation is not final. According to Winget, the $2 million fee award is “premature” because “there is no final judgment.”1 (Winget‘s Reply Br. at 4; Winget Supp. Br. at 3.) And while Chase prefers to confirm its fees sooner rather than later (arguing that we have jurisdiction), Chase still described its motion for fees as “interim in nature” and that it “will from
In sum, it is undisputed that this award for attorneys’ fees is not the last order to be entered in the action. Instead, there is plenty left for the district court to resolve. Thus, viewing Chase‘s post-judgment collection efforts as separate and ongoing litigation, the interim award of attorneys’ fees is not a final, appealable decision under
III.
There are, of course, exceptions to
Chase argues that this case fits within one of these narrow exceptions: post-judgment monitoring cases. In these “monitoring” cases, our sister circuits have allowed parties to appeal interim awards of attorneys’ fees. But these cases are unique. They typically stem from consent decrees between parties—agreeing that long opеn-ended monitoring is needed to cure constitutional violations. For example, in one of the cases Chase relies on, Balla v. Idaho, there was a “twenty-year-old injunction” in place to fix constitutional violations in prisons. 677 F.3d 910, 912 (9th Cir. 2012); see also Madrid v. Gomez, 190 F.3d 990, 994 n.4 (9th Cir. 1990) (finding that it had jurisdiction to review “[a] periodic fee award made during the remedial phase оf a prisoner civil-rights” matter in a similar long-term monitoring case).
This reveals the key commonality in the monitoring cases that is missing here—the inability to obtain post-judgment finality. See Gates v. Rowland, 39 F.3d 1439, 1450 (9th Cir. 1994) (“The compliance period has not been limited to a definite time frame.“). Because monitoring cases can go on indefinitely, a рarty can immediately appeal an interim fee award; otherwise, in some circumstances, the parties could never appeal. See Gautreaux v. Chicago Hous. Auth., 491 F.3d 649, 654 (7th Cir. 2007) (“Another reason for allowing an immediate appeal is that a decree might never be dissolved, so that to treat fee awards as interlocutory might defer appeal to the end of time.“) (citation omitted); Interfaith Cmty. Org. v. Honeywell Int‘l, Inc., 426 F.3d 694, 702 (3d Cir. 2005) (“We are persuaded by this logic [in Gates]. In a complex environmental [clean-up], monitoring will likely continue well into the future . . . for years if not decades.“); Walker v. U.S. Dep‘t. of HUD, 99 F.3d 761, 766 (5th Cir. 1996) (“[C]onsidering the ongoing and possibly permanent
We have recognized this same commonality. Webster, 846 F.2d at 1035. In Webster, we had jurisdiction to resolve an appeal from an interim fee award. But unlike typical interim fee awards, the district court “imposed... a prospective burden of large monthly fee payments with no definite cutoff date,” and it was undisputed that “repayment in the event of appellate reversаl could not be assured.” Rosenfeld v. United States, 859 F.2d 717, 721 (9th Cir. 1988) (distinguishing Webster); see also Cobell v. Jewell, 802 F.3d 12, 22 (D.C. Cir. 2015) (“The post-settlement fees and costs . . . could continue indefinitely[.]“).
But here, despite the long litigation between the parties, Chase‘s collection efforts will have an end date. The district court will eventually enter a final amended judgment, resolving which assets Chase can collect frоm, and calculating Chase‘s total attorneys’ fees. See, e.g., Cent. States, 971 F.2d at 6 (“A contested collection proceeding [unlike monitoring cases] will end in a judgment or a series of judgments granting supplementary relief to the plaintiff.“). And neither Winget nor Chase suggest that irreparable harm would result if we defer review of this interim award until thе district court completes the rest of the post-judgment litigation.
As a result, the $2 million interim attorneys’ fee award is not a “final decision.” And because our jurisdiction is limited to “final decisions of the district courts,”