Nwaubani v. GrossmanNwaubani v. Grossman
Case Information
*1 United States Court of Appeals
For the First Circuit
No. 14-2250
CHIDIEBERE NWAUBANI,
Plaintiff, Appellant,
v.
DIVINA GROSSMAN, in her official capacity as Chancellor, University of Massachusetts Dartmouth, and in her individual capacity, et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
Eric Nwaubani on brief for appellant.
Maura Healey, Attorney General, Dierdre Heatwole, Special Assistant Attorney General, General Counsel, and Denise Barton, Assistant Counsel, on brief for appellees.
November 25, 2015
*2
THOMPSON
,
Circuit Judge
. This appeal arises out of a
district court's decision to combine a preliminary injunction
hearing with trial under
BACKGROUND
In 2005, Chidiebere Nwaubani ("Nwaubani") was hired as the director of the African American Studies Program at the University of Massachusetts at Dartmouth, and then subsequently also appointed as a tenured Associate Professor in the university's History Department.
Over the years, Nwaubani's relationship with the university got rocky. For our purposes, we need not delve too far into these details, but suffice it to say that the crux of the conflict centered on disagreements about Nwaubani's performance as director of the African American Studies Program and on Nwaubani's efforts to get out from under the thumb of the History Department, whose negative annual evaluations in 2006-07 and 2007-08, Nwaubani says, resulted in his being passed over for a promotion to full Professor status in subsequent years. Things came to a head and Nwaubani was placed on unpaid administrative leave on July 10, 2013, and then notified on November 8, 2013 that the university had commenced termination proceedings against him.
This prompted Nwaubani, represented by counsel, to file
suit, alleging various causes of action, including claims under 42
*
On March 14, 2014, Nwaubani filed his second amended
complaint, along with an amended motion for preliminary injunction
(which more or less requested the same relief as the first motion
for preliminary injunction). Now here is how the case came to be
before us today. The defendants moved to dismiss the second
amended complaint on April 18, 2014, again arguing that it still
*4
suffered from the same pleading defects, and as such did not comply
with
*5 The university terminated Nwaubani on June 18, 2014.
The next week, Nwaubani's counsel filed two motions for reconsideration of the district court's June 10, 2014 order, which combined the preliminary injunction hearing with trial. He now appeals that order, along with the district court's denials of his motions for reconsideration.
During the pendency of this interlocutory appeal, the district court has proceeded with the case, which is currently in the summary judgment phase below.
Jeannette Riley, John Farrington, Divina Grossman. Counsel for the plaintiff does not appear. The Court enters the following Order without oral argument and based only on the papers granting in part and denying in part 33 Motion to Dismiss; Counts 2-28, 48 and 51 are dismissed because they don't state a cause of action; denying 41 Motion to Substitute Response. The motion for preliminary injunction is combined with trial on the merits according toRule 65(b) . This Court will continue to preside over this case based on this ruling. The Court requests defense counsel confer with plaintiff's counsel to determine a trial date. As a general matter, an "interlocutory injunction appeal
under § 1292(a)(1) does not defeat the power of the trial court to proceed further with the case." 16 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3921.2 (3d ed. 1998). Before dispositive motions were filed, the case was also referred to a magistrate judge for a settlement conference, but the settlement effort failed.
DISCUSSION
Although, as a general rule, an order must be final
before we may consider it on appeal, see
Where an interlocutory order does not expressly deny
injunctive relief, as is the case here, a party may only appeal if
(1) the district court's decision had the practical effect of
denying injunctive relief; (2) the denial of injunctive relief
would "cause serious (if not irreparable) harm"; and (3) the order
can effectively be challenged only through an immediate appeal.
Watchtower Bible & Tract Soc. of N.Y., Inc. v. Colombani, 712 F.3d
6, 12 (1st Cir. 2013) (citing Carson,
even if we assume Nwaubani has met the first and second requirements, he cannot meet the third, so we lack appellate jurisdiction.
As to the first requirement, Nwaubani argues that
because the district court consolidated the preliminary injunction
hearing with trial but never held an expedited trial, the
consolidation order had the effect of denying a preliminary
injunction. Indeed, the district court's docket reveals that in
the year-and-a-half since the consolidation order was entered, the
court has continued to proceed with the case, but to date has
neither held nor scheduled a consolidated merits proceeding. In
the last line of its consolidation order, the district court did
request that "defense counsel confer with plaintiff's counsel to
*8
determine a trial date," but it is unclear from the record and
from the parties' briefs whether the consolidated proceeding was
never scheduled because of a failure on the court's part or because
the parties failed to follow up on the court's request. If, for
example, the district court improperly refused to hold an expedited
merits proceeding, Nwaubani's argument that the consolidation
order effectively foreclosed him from a preliminary injunction may
have some merit. Cf. Fideicomiso De La Tierra Del Caño Martín
Peña v. Fortuño,
Moving on to the second requirement, we likewise assume, favorably to Nwaubani, that it is also met, though we are doubtful that he has shown the denial of injunctive relief has caused serious, if not irreparable harm.
*10 Yet, even assuming these first two requirements are met, we lack jurisdiction because Nwaubani fails to meet the third requirement in that he cannot show that the order is only effectively challenged on immediate appeal. Colombani, 712 F.3d at 12.
Nwaubani argues that immediate appeal is necessary
because if he "awaits the final determination of his case, the
damage to his property interest in continued employment at [the
university] will have already been done." But at the time of the
filing of this appeal, Nwaubani had already been terminated, so
the damage to which he refers was already past. Furthermore,
Nwaubani does not argue that any rights he may have if he succeeds
on the merits, whether they be rights to back pay and money
damages, or equitable remedies like declaratory judgment or
reinstatement, are somehow less available to him after final
judgment than they are now. Thus, we have no basis on which to
conclude that this order can only be challenged effectively through
immediate review, and so the third requirement is not met. Cf.
Sherri A.D. v. Kirby,
Having no jurisdiction over the underlying decision to consolidate the motion for preliminary injunction with trial, we also lack jurisdiction over the district court's denials of Nwaubani's motions to reconsider its order. Accordingly, this appeal is dismissed.
Notes
[1] Nwaubani also asked for backpay, release of various documents related to his salary, reinstatement of access to his official mailbox, and that the defendants be enjoined from all further communication with him.
[2] The defendants argued that Nwaubani's 721-paragraph first
amended complaint was not a "short and plain statement" of his
claims, see
[3] The district court gave the parties notice of the hearing on May 14, 2014. On May 23, 2014, Nwaubani's counsel filed a consent motion to continue the hearing, citing the death of a family member in Nigeria as the reason for the request. The district court denied the request by electronic order that same day. Nwaubani's counsel then filed, on the morning of the hearing, an Emergency Motion to Continue the Hearing, explaining that because of flight delays on his trip back from Nigeria, he could not be present at the hearing after all. The district court again denied the emergency motion by electronic order that morning. Nwaubani's counsel then informed the court's clerk by telephone that he would, in fact, attend the hearing, but after the court waited an hour, it became clear Nwaubani's counsel would not show up, and the court proceeded to call the matter.
[4] The full text of the entry on the electronic docket reads: ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 6/10/2014 re 33 MOTION to Dismiss Second Amended Complaint filed by William Hogan, Deborah Majewski, Anthony Garro, Alex Fowler, Mark Santow, Carol Santos, Jean MacCormack, James Griffith, Robert Caret, Henry Thomas, III,
[6] The district court's electronic order incorrectly cites
[7] Regardless, we are troubled that the district court, in
consolidating the preliminary injunction hearing with a trial on
the merits may have unfairly put Nwaubani (over his objection) in
a position where he was forced to forego a ruling on his
interlocutory request for injunctive relief in order to conduct
adequate discovery to prepare for a trial on the merits. See
[8] Nwaubani argues that he suffers irreparable harm in the form
of "loss of his salary and benefits and the resulting consequences
like health complications, and diminished living standards," as
well as from the continued deprivation of his First and Fourteenth
Amendment rights. While the loss of salary and its collateral
consequences may be difficult circumstances for the bearer, they
infrequently rise to the level of irreparable harm required for a
preliminary injunction, see Sampson v. Murray,