OFS FITEL, LLC v. Epstein, Becker and Green, PC

оlder than those yet who were not full- TJOFLAT, Before HULL and retirement-eligible. management Fitel’s WILSON, Judges. Circuit preferred not permit employees these HULL, dip” Judge: by taking Circuit “double full retirement ben- efits from Lucent while having also their case, In attorney negligence plain- years of Lucent service increase their ben- tiffs OFS Fitel LLC and BrightWave OFS efits from Fitel. “Fitel”) (collectively, LLC appeal the dis- Thus, adopted policy Fitel giving non- dismissal, trict court’s final retirement-eligible employees at full Fitel contending the district court abused its years Lucent, credit for their of service at discretion in imposing discovery sanctions. treating retirement-eligible while employ- Epstein, Green, Defendant Becker & P.C. (“EBG”) newly purposes ees as hired for of calculat- moved to dismiss the for ing their benefits at Fitel. According to jurisdiction. lack of After review and oral Fitel, attorneys EBG researched whether argument, jurisdiction we conclude that ex- proposed Fitel’s dipping” policy “no double ists over the appeal, part and we affirm in might violate Age Discrimination in in part and reverse the district court’s (“ADEA”), Employment Act 29 U.S.C. sanctions order and dismissal of Fitel’s § 621 seq., et but never warned Fitel that claims. policy subject could Fitel to viable or potentially or viable claims lawsuits under I. BACKGROUND the ADEA. A. Fitel Purchases OFS and Considers Dipping Policy

No Double B. ADEA Against Claims Fitel parent November Fitel’s com- During years pur- the two after its OFS pany chase, Furukawa Electric Company, Ltd. Fitel in engaged layoffs a series of (“Furukawa”) purchased Optical Fiber So- of employees. Beginning OFS/Fitel agreements other agreement fee tel’s] demand letters 2003, Fitel received

July represent- firms attorneys or law with the em- laid-off former several OFS/Fitel from Action; all [Fi- in this invoices ing [Fitel] favor- Fitel’s less contending that ployees attorneys or law from such received tel] constitut- workers of older able treatment reflect- all ... other documents firms and under the age discrimination ed actionable (the attorneys” to such ing payment made coun- independent Fitel retained ADEA. response Request”). “Document claims, and deter- sel, investigated immu- product objected privilege, work Fitel settled had merit. the claims mined but, subject to nity, grounds and relevance million at a cost of claims $1.9 the ADEA “produce docu- objections, agreed those approxi- the employees payments Re- responsive to Document [the ments $450,000 legal fees. mately amounts of attor- quest] reflect paid [Fitel] to and neys fees billed EBG Fitel Sues C. (redacted, action with this connection sued EBG in In October informa- protect privileged necessary, legal mal- court, asserting claims state tion).” unjust fiduciary duty, of breach practice, what documents dispute A arose over fees, enrichment, punitive attorney’s production and when produce Fitel would of each claim was that The crux damages. that would Fitel indicated would occur. Fitel of the EBG, failing to warn “no in bills, summary its counsel’s produce non-com- policy’s potential dipping” double bills. insisted on the actual while EBG ADEA, defi- had rendered the pliance with that a position to EBG its Fitel reiterated meet failed to the advice and legal cient that it and stated summary was sufficient attorney- by the imposed care standard of as summary as provide would soon thereby commit- relationship. EBG client provide that if we “confirm[ed] EBG fiduciary its malpractice, breached ted not contend that [summary], [Fi- will EBG enriched. unjustly EBG’s duty, and was Because response is insufficient.” tel’s] was a core element negligence professional summary that a was agreed EBG never Georgia requires law in claim. As of each it. Fitel enough, produced Fitel never actions, at- Fitel negligence professional actual bills or a fee produced never complaint expert’s an affidavit to its tached agreement either. allegedly negli- identifying defendant’s dispute arose over Rafuse’s Another bases for and the factual gent acts expert report due under Federal written expert Fitel’s charge negligence. As stated 26. Rule of Civil Procedure attorney Nancy Rafuse. Fitel’s Atlanta above, expert Fitel identified Rafuse its only complaint sought to recover legal of care attached on the standard paid and the fees money ADEA settlement Fitel expert complaint. to its her affidavit attorney’s Fitel’s fees to EBG but also as its designation its of Rafuse confirmed instant action. bringing incurred initial post-removal in its expert witness dis- to federal removed the case EBG 18, 2006, no- May Fitel disclosures. On diversity jurisdiction trict court because depositions of four ticed for late June set the close of The district court existed. On attorneys living New York.1 EBG 13, 2006. discovery August for 2006, in an 12, Fitel wrote EBG June depositions by these request attemрt to schedule upon EBG served Fitel letter EBG informed reflecting agreement. [Fi- “all production of documents Fitel, later left EBG. represented but one attorneys when EBG 1. All four were EBG expert report ery being 13, that Rafuse’s would “take deadline August 2006. deposition testimony” into account the Once such an expert report is furnished it, attorneys those EBG and that be- to Defendant will want depose “[w]e said completed can report expert lieve her be within and evaluate the necessity of thirty days of the completion identifying expert testify these in re- case, depositions.” Throughout sponse four thereto. consistently

Fitel has contended it needed (Citation omitted). Thus, EBG acknowl- attorneys information from the EBG about edged it was aware Fitel needed the EBG they representing what did Fitel in or- attorneys’ depositions before Fitel would complete report. der for Rafuse to her As producing expert’s written report. 26(a)(2)(B) later, requires noted Rule thereafter, Shortly parties submitted a expert’s report written contain not order, consent which the district court also, a statement of her opinions but signed, extending discovery period un- among things, other the “data or other 31, til October depositions 2006. The information considered the witness in attorneys the EBG did not place take forming opinions.”2 noticed, originally June 2006 as and two of the four delayed were until September 14, 2006, On June EBG filed a motion 2006 for the attorneys. convenience of the discovery and brief for extension of from After EBG informed Fitel one of the August 2006 until December attorneys’ depositions EBG could not be argued discovery EBG’s brief exten- September scheduled until sent reasons, sion was needed for several in- letter to EBG reminding EBG that it cluding expert report that Fitel’s would deposition needed the to finalize Rafuse’s prepared attorneys not be until EBG were expert report: deposed and then EBG needed time to you remind that we will ap- [W]e need depose expert: (30) proximately thirty days after the 12, 2006, On June counsel for Plaintiffs completion lawyer deposi- EBG informed counsel for defendant that no expert report. tions to finalize our If expert report will prepared by be said gentlemen any these cannot find earlier until expert approximately thirty days schedules, opening you in their should depose[] after certain attor- Plaintiff[s] expect expert report not our until mid- (which neys employed by deposi- EBG October. originally by tions were noticed Plain- 26,

tiffs for the week of June 2006 and attorneys The last of the four EBG was currently subject 27, 2006, which are deposed September of dis- on and Fitel’s counsel). cussion between Even if those transcript counsel obtained the from the depositions 16, were taken on the reporter dates court on October 2006. Fitel Plaintiffs, originally produced noticed said ex- Rafuse’s written report No- 3, 2006, pert report supplied would not be before eighteen days vember which was 2006, August present with the discov- receiving deposition after the last tran- (11th Cir.2008) opinion quote they (quoting In this we the rules as 1308 n. 11 Fed. 2. Comm, 1, rulings Advisory read when the district court issued its R.Civ.P. note on 2007 1, 2007, Amendment). "Except very in 2006. Effective December howev for a small num er, amendments,” the Federal Rules of Civil Procedure were ber of minor technical none of here, 'general restyling amended "to effect a ... to which relevant “the amendments easily changes make more them understood and to were intended to make no in substan style terminology meaning.” (quotation make and tive Id. and consistent.'" marks cita Co., omitted). v. Mills Foremost Ins. tion before the the court’s attention dispute to days after the close three script but hearing EBG’s discovery. After close of discovery on October rebuttal, preju- with the court dismissed Motions, Hearing, and Discovery D. fees, attorney finding Fitel’s claim for dice Rulings Sanctions pro- to failure Fitel complete, a willful filed a series EBG In late October attorney’s fee documents: vide its Specifically, motions. discovery-related me, that there’s been appears, to [I]t to, among the district EBG moved to failure complete and willful just (1) claim for things: exclude other discovery to with the defendants provide to of its failure fees because attorney’s going And I’m entitled. they’re which legal current from its the bills produce motion to ex- the defendant’s grant to testimony counsel; exclude and attorney’s claim for plaintiffs clude the expert witness any other Rafuse and 37(d) authority of Rule under the fees of Fitel’s designate because might 37(b)(2)(C). appropri- It’s not—not 26(a)(2) Rule timely produce failure to produce to docu- simply ate to refuse The district court report. expert written to a clearly that are relevant ments De- motions on on EBG’s argument heard well, say, you accept sоme- claim then 15, 2006.3 cember you it to give than that and I’ll thing less it, motion to strike then, accept say, presented you EBG first don’t well, judge fees. Fitel ar- attorney’s going to make the Fitel’s claim we’re require judge not if the then Georgia law did us to do it. And gued that well, it, it. attorney’s bills on we’ll do ongoing orders us to do disclose its are han- persuad- just way not the cases The court was That’s regular basis. court, way injury and it’s not the ed, personal my dled there was stating “[i]f handled ongoing going permit I’m cases having your case and client well, my grant court. So I the motion say, I’m not you medical bills would dismiss, plaintiffs prejudice, any the medical ex- going give you mean, attorney’s I claim for fees. they’re ongoing? penses because replied Fitel that difference?” what’s the argument heard The court next it to dis- require providing its bills would legal ex- motion to exclude Fitel’s EBG’s of what the “essentially, blueprint a close expert that Rafuse’s pert. argued Fitel talking they’re lawyers doing are and who affidavit, complaint, complied with the filed The court product.” to and their work 26(a)(2) because the affidavit with Rule right would have the responded “you summary opinions of Rafuse’s contained a that sort of infor- your to redact from bills underpinning legal and the conclusions say demanding mation .... But to we’re them, depose EBG to and thus enabled damages, of our attorney’s part fees as discovery period. Fitel during Rafuse you the bills that docu- give we refuse to delay produc- out that the pointed also just ... I’m fees are ment what those by ing expert report a formal was caused mystified by argument.” attorney make its EBG EBG’s failure to depo- in New York available for pro- it had offered to witnesses argued Fitel then discovery period. bills, earlier but EBG sitions summary duce a claimed, Fitel Ra- testimony, their bring and failed to this Without rejected this offer Fussell, Wedge Wedge Shapiro, represented by B. hearing, was Robert 3. At the Bondurant, Martin, & Jeffrey Mixson O. Bramlett & LLP. LLP, by represented and EBG was Elmore produce report any a more to depose expert. finally, fuse could not his And I than comprehensive regret say, say her affidavit. to only very after that, careful consideration frankly, this offered, Finally, Fitel in lieu of sanc- me, appears, part to to be pattern of a tions, deposi- to make Rafuse available for by plaintiffs, of stonewalling and de- request. Specifically, tion EBG at its And, laying discovery. for those rea- stated, Fitel’s counsel is a “[BJecause sons, I feel that my duty it is to enforce issue, dispositive case we would ask that says that, the local rule that you if don’t permit report the court to be filled comply, you don’t designate your ex- permit out of [sic] [time] and defendant perts sufficiently early in the discovery if deposition to take the defendant wants period, you provide don’t report In response, to do that.” EBG’s counsel allows the other side to take their depo- reiterated that Rafuse’s affidavit did not sition, the sanction is exclusion. And provide opinions sufficient notice of her to why I’m granting that’s the motion. 26(a)(2) non-production excuse of the Rule report, written that Rule 26 Local The court pro- asked EBG’s counsel to 26.2(C) require report pro- Rule to be ceed with his next motion. Fitel’s counsel early enough permit expert depo- duced pointed then out that the court’s exclusion discovery taken sitions before legal expert of Fitel’s was case-dispositive closes, period provide and that “a failure to case, and there nothing was left in the 26(a)(2)] is, [required by information Rule stating: itself, sanctions, sufficient to warrant Honor, may, Your if I ruling the court’s including expert’s testi- [exclusion] is, fact, on that motion disposi- case mony.” tive. Under the law the hearing argument, After expert testimony unable to offer on the granted EBG’s motion to exclude Fitel’s professional issue of negligence, there is legal expert, reasoning: no case left. if the So court wants to there, Again just complete failure motions, proceed with these other that is comply with the rules and it’s not certainly prerogative. the court’s But me, acceptable, say, is, my suggestion light of the court’s well, comply we didn’t with the rule ruling, proceed we cannot in this case. thought because we it would be more my thought you And so is—and if want efficient or practice better to do it our motions, to hear these other that’s fine. way, way says rather than the rule But got we’ve to decide whether we— you’re supposed to do it. It’s also not nowhere, going this case is based on that acceptable to me for a to fail to therefore, ruling; we’ll have to decide well, provide discovery say, and then whether we need to that or not judge, you wrong decide in we did not going or dismiss or whatever we’re rules, well, complying with the it we’ll do Frankly, pur- do. if the court wants to now. That completеly disrupts the or- motions, sue these other that’s fine. derly disposition of a case like this. For nothing But there’s left of this case example, accepted if I Mr. Bramlett’s light ruling, of that last and the court that, well, suggestion we’ll make the ex- everybody could save lot of time and pert deposed, available to be that means money by, simply, moving forward. discovery’s got reopened to be for that deposition. Wedge got Then Mr. has to The court asked for comment EBG’s counsel, expert, got replied: hire his and the has who it ruling, on the last honor, point, I at this based concern, is ... your only My things to haven’t heard me. There are other motion we seems to that the think motion, regarding fifth do. yet [the in dis- engage failure to alleged “willful then stated: The court is, the most illustra- perhaps, covery”] Well, Bramlett, you how I can’t tell Mr. the failure stonewalling and tive of the I for me to do what painful it has been that discovery anything we’ve to make going to be painful and how did 16,000 today. got elec- far We seen so through these next you go me and for dumped starting on us tronic documents your sugges- appreciate I few motions. discovery period days four before And, appropriate. I think it’s tion. motion for Now in our .... ended plain- upon stipulation based relief sanctions, prayers our for one of expert is a tiff that the exclusion of its complaint made was dismissal

we event, is dis- this action dispositive case And the that conduct. based on missed. have, juncture, is if the I at this concern 5, 2007, entered an January the court On ruling of the court appeals the plaintiff' stated, dismissal, among which order of ... expert affidavit respect to the with have, it, things, that: another other the record would upholding that deci- ground for potential rulings on After the Court announced the net guess guess I the—I sion. And sanctions], two counsel [motions that, be if the all of that would effect of that, ... in lieu suggested for Plaintiffs in an on successful plaintiff were remaining pend- proceeding with I we could address ruling, suppose motions, simply discovery the Court ing at that time. remaining motions these the case. Defense proceed to dismiss messy in these a lot of issues There are object and the Court counsel did not .... perhaps, motions So remaining appropriate. Ac- suggestion found this time, course, at this would be the best stipula- on cordingly, [Plaintiffs] based rights, respect our with for us to reserve ruling ex- [the tion that Court’s motions, outstanding rather to our other dispositive,” is “case pert motion] everybody subjecting the court and than prejudice. Court dismissed the case with .... [hearing that I motion] else would, pre- simply, want to able Appeal E. and Motion to Dismiss rights respect with to those serve our court’s timely appealed district motions, your honor. dismissal, arguing you “Do Fitel’s counsel: The court asked imposing court abused its discretion in terms of the other respond want moved discovery sanctions. EBG then replied: He motions for sanctions?” to dismiss Fitel’s for lack this Court suggesting ... the case ... Well jurisdiction. carried EBG’s motion We ruling by the last dispositive nature of argument. and held oral case court, proposition I offered the terminate, point, at this

the case should II. JURISDICTION efficiency. problem I have no based on jurisdiction. first consider our We in the order that putting something 1365, 1366 Taylor Appleton, See v. Wedge’s rights Mr. to reas- preserves Cir.1994) (“[A] (11th de court must first any you, point, motions if at sert these proper subject .... termine whether has necessary to do that [B]ut feel it’s jurisdiction addressing the that is dead matter before talking about case we’re issues.”); Hosiery provide Parklane amended its order to substantive for dismissal (In Venture re if the grand jury transcript Co. v. pro- was not Parklane/Atlanta Venture), 927 F.2d Joint duced. Id. government The refused to Parklane/Atlanta Cir.1991) (“Before (11th 532, reaching produce transcript, the and the district principal appeal, the issue raised this 679-80, court dismissed the case. Id. at this Court must first determine whether it S.Ct. at 985. jurisdiction.”).

has submits government The appealed, and the Su- jurisdiction has over its un Court preme Court question confronted “the § pursuant der 28 1291 and U.S.C. jurisdiction.” 680, Id. at 78 S.Ct. at 985. Co., v. Procter & United States Gamble The Supreme Court first noted that the 677, 983, 2 356 U.S. 78 S.Ct. L.Ed.2d 1077 dismissal order was a final order that end- (1958). jurisdic EBG contends we lack ed the case. Id. Supreme Court tion, citing Druhan v. American Mutual then acknowledged “the familiar rule”— (11th Cir.1999) Life, 166 F.3d 1324 invoked the defendants in arguing that Corp., v. STP 170 F.3d 1043 Woodard jurisdiction was lacking plaintiff a—that (11th Cir.1999). review, After we conclude voluntarily who has dismissed his com- jurisdiction appellate exists under 28 plaint However, may appeal. Id. the U.S.C. 1291 and the Constitution. The Supreme Court concluded rule “[t]he Gamble, parties are correct that Procter & here,” application has no gov- because the Dnuhan, and Woodard are relevant to our ernment had “at all times opposed the inquiry. Consequently, we discuss and production orders” and invited the dismiss- apply precedents. then these “way al sanction as a getting review the ruling.” regard, adverse Id. In that A. Precedents Supreme Court held when the v. United States Procter & Gamble government “proposed dismissal for failure Ca obey, it had lost on the merits and was only seeking expeditious review.” Id. In United States v. Procter & Gamble 680-81, words, at “ 78 S.Ct. at 985. In other Co., government civil filed a antitrust? plaintiffs judg- ‘[t]he did not consent to a following a grand jury investiga- lawsuit them, that, ment if against but there tion in which no indictment was returned. judgment, was to be such a it should be 678, 356 U.S. at 78 S.Ct. at 984. Because final in interlocutory, form instead of so government using grand jury they might come to this court without trial, transcript to civil prepare ” 681, delay.’ further Id. at 78 S.Ct. at 986 sought transcript defendants access to the (quoting Cayser, Thomsen v. 243 U.S. refused, government as well. Id. The but (1917)). 353, 358, 61 L.Ed. 597 S.Ct. production. district court ordered Id. Thus, jurisdiction Supreme Court had government, at 78 S.Ct. at 985. The appeal. to decide the merits of the obey,” “adamant in its refusal to moved (1) stay district either 2. Druhan v. American Mutual Life pending filing of an writ, Gamble, extraordinary application for an After Procter & this Court (2) (1) amend its order state that heard two cases where the district government produce plaintiffs failed to the tran- court denied a motion to remand court; script, the district court would dismiss the its case to state dismiss; complaint. granted Id. The district court then filed a written motion to government option granted the its latter and the district court the motion denying her mo- the court’s prejudice. [district] with the case and dismissed cases, effectively left her without this concluded to remand Court tion both remand the final Although adverse to the remedy.” not Id. was at plaintiff the jurisdiction did not by thus request Druhan’s judgment, granted court district exist. prejudice,4 the with the dismissing action does not state majority opinion Druhan v. American in Druhan Specifically, approved court ever that the district Court addressed Life, Mutual Druhan’s assertion that she agreed with from a final an of whether question Indeed, ERISA. had no claim under voluntary from a resulted judgment, which out points Judge Barkett’s concurrence plaintiff after the prejudice dismissal with case- court, order was not district court’s remand to state motion to remand lost a Druhan, 166 F.3d at 1327 jurisdiction. dispositive. See this Court’s within (“The J., Druhan sued the (Barkett, concurring) district plaintiff at 1325. The in state company defendant insurance motion to re- denial of Druhan’s court’s fraudulently court, alleging the defendant of dis- ... did not have effect mand policies. one of its purchase induced her to Druhan had missing her action. still purchased Druhan Because Id. at 1324. ERISA.”); under ability to make her claim employ- her in connection with policy (majority opinion) also id. at 1326 see be- the defendant package, er’s benefit “plaintiff believes re- (stating [the that by preempted were Druhan’s claims lieved effectively disposed of her order] mand Security Income Retirement Employee case,” stating that the district but not seq., et (“ERISA”), 29 Act U.S.C. agreed). court ever court. Id. to federal and removed case that the appealed, arguing Druhan dis- the district Druhan moved at 1324-25. denying the trict court erred in remand court, case to state to remand the not preempt motion because ERISA did her preempt did not that ERISA arguing Dru- Druhan’s state law claims. Because The district court Id. at 1325. claims. judg- final affirmatively han invited the defendant and denied agreed with the her, against ment entered this Court con- Id. Druhan’s remand motion. jurisdictional specifically, fronted a issue— “Request a written Druhan then filed judgment a final “whether from Judg- Final Entry Stipulation voluntary that resulted from dismissal (the Request”). Id. at “Judgment ment” juris- this court’s prejudice with is within signed Because it was not 1325 & n. 3. Id. at 1325. diction.” defendant, characterized the this Court Although preju- was with “a motion to dismiss Request as Judgment final, indisputably the Druhan 41(a)(2) dice the Federal Rules of Rule under jurisdic- it lacked Court determined at 1325 n. 3. In her Procedure.” Id. Civil no “case or contro- tion because there was Druhan “stated that Request, Judgment The Druhan versy.” and thus Id. at Court claims under ERISA 1326.5 she had no concluded that Procter Judgment Request apparently did 5. The Druhan Court 4. Druhan's control; case, & Gamble did not sought specify she a dismissal not whether found, "very Court different” Druhan pre- prejudice; this Court with or without "an affirmative re- because it did involve prejudice con- sumed the dismissal plaintiff ‍‌​‌​‌​‌​​​‌‌‌​‌​​​​‌​‌​‌‌‌‌‌‌‌‌‌​​‌​​‌‌‌​​​​​​​​‍the case be quest dis- because she formed to Druhan’s wishes never merely prejudice” but missed with at- argued appeal. See id. at 1325 otherwise on tempt by the "to influence the n. 3. determining appro- court's discretion in III pointed Specifically, out that Article of the United plaintiff the Woodard ju- limits federal court States Constitution brought a class action in state court. Id. “Controversies,” risdiction to “Cases” and at 1044. a grant After of conditional class the heart of the case or contro- “[a]t certification, the defendants removed the versy requirement presence is the of ad- case federal court diversity based оn parties.” verse Id. The Court concluded jurisdiction. Id. The plaintiff moved to judgment that because the final was en- remand the case state court. Id. The response tered in to the plaintiffs motion district court denied the motion and vacat- prejudice, for a dismissal with and because ed the state court’s conditional class certi- contending neither was the district fication. plaintiff Id. The then filed a error, judgment court entered that dismissal, motion voluntary which the “[tjhere is therefore no adverseness as to opposed. defendants Id. The district the final judgment, and thus no case or granted court the plaintiffs motion and added). controversy.” (emphasis Id. prejudice. dismissed the case with Id. Additionally, the Druhan plaintiff appealed, Court looked The challenging, among beyond appeal the form of the to the sub- things, other the district court’s denial of stance and concluded that it “not an was remand. Id. appeal from a final judgment, ap- but an This Court plaintiff noted did peal denying from an 1292(b) § not obtain certification and thus plaintiffs motion to remand.” Id. appeal directly could not from the order The Druhan Court determined that such denying remand. Id. Although plain- from an interlocutory order is tiff obtained a final when the statutorily “not authorized” because the granted prejudice his motion for denying “district court’s order remand is dismissal, voluntary the Woodard Court among ap- the orders from which an concluded the judgment not appeal- was peal lies as a matter right, and the able because “it was obtained at the re- plaintiff by did not seek an appeal certifi- quest of the and there is therefore 1292(b). pursuant § cation” to 28 U.S.C. no ‘case or controversy’ regard to it.” Although recognizing

Id. may there Druhan, 1326). Id. (citing 166 F.3d at good policy reasons to allow This Court dismissed concluded, “[t]hat, proceed, the Court remand lack jurisdiction. denial for Id. however, is a decision that rests at 1044-45. which, Congress, hands of along with the Constitution, sets the boundaries of this Analysis B. Jurisdictional jurisdiction.” court’s Id. In light precedents, of these it is Cory.

3. Woodard v. STP juris clear that for this Court to exercise Druhan, appeal, jurisdiction diction over an Shortly our after this Court con- (1) be both fronted a must authorized statute and similar issue Woodard v. STP Druhan, Druhan, Corp., 170 at within constitutional F.3d 1043. Like limits. prong, Woodard involved an 166 F.3d at 1326. As to the first appeal from an invit- ed final judgment Congress appeals after the denial of authorized stаtute plaintiffs judgments. motion to remand a case to from final state See 28 U.S.C. (“The Druhan, court. Also like Woodard did not ... appeals courts shall involve an order that case-dispositive. jurisdiction appeals have from all final

priate discovery sanction for violations.” Id. at 1325 n. 4.

1356 whether there only question is except ... the district courts decisions to that final sufficient adverseness as is may be had in the review a direct where controversy satisfy or the case dismissal Court.”). Supreme Where a requirement of the Constitution. (the § final- through 1291 party appeals require satisfies the appeal Fitel’s statute), ad she must be judgment appeal be by statute being authorized ment of judgment.” final See Dru verse “as to the judgment of a final appeal an cause is han, argues at EBG 166 F.3d 1326. District See prejudice. with dismissal controlled question is the adverseness (the 5, 2007 “Dismiss of Jan. Order Court in Druhan and precedent this Court’s (“this hereby Order”), action is at 4 al Fitel is thus not adverse and that Woodard If Fitel loses prejudice”). dismissed with judgment. final We to the district court’s Fitel cannot the case is over. appeal, disagree. court’s dismissal the district re-file because addressed the adverse This Court v. See McMahon prejudice.6 was with question ness Druhan Woodard Inc., 1331, 502 F.3d Airways, Presidential appeal of the of a denial the context Cir.2007) (11th (stating that 1338 remand, interlocutory not an of a motion to it “ends the appealable when is final and effectively case-dispositive. ruling that was nothing the merits and leaves litigation on Woodard, this Court In both Druhan and execute the the court to do but more for is not found that sufficient adverseness final appeals a Because judgment”).7 plaintiff when a loses contested present § exists under 1291 jurisdiction judgment, interlocutory a motion to remand ruling on the substance regardless of whether request voluntarily and then files written interlocutory or concerns Fitel’s prej judgment that a final be entered Sullivan, 659, 916 F.2d Myers der. v. See cases, re udice. In such the contested Cir.1990) (“Under (11th general legal 673 only the forum in mand denial affects interlocutory orders principles, earlier litigate, and the plaintiff which the must judgment, and a merge into the final only from dismissal on the merits derives Thus, error may request. the latter to assert written plaintiffs own order.”); after denial of a motion to plaintiff v. when interlocutory earlier Barfield Cir.1989) requests preju a dismissal with (11th remand Brierton, 923, F.2d 931 883 dice, ruling, there is no contestеd judgment final (holding that “review final, as to the mer either prior interlocu opens for consideration claims. plaintiffs its of the orders”). Thus, tory preju final dismissal with circum- Consequently, district court’s in the factual Woodard, by § 1291. stances of Druhan and expressly dice authorized is contrast, judgment that we do not and thus the entered the district have held "[w]e ” appeals jurisdiction truly have from volun to hear ‘final.’ Id. court was prejudice, tary because dismissals without bring they plaintiff the case leave the free Indus., Inc., Carpenter 7. See also v. Mohawk again 'final' decisions and therefore are not (11th Cir.2008) (stating F.3d 1052 541 purposes appellate jurisdiction under purpose that a decision for the of obtain- final Druhan, at § 28 U.S.C. 1291.” ing appellate jurisdiction under 1291 "is out, pointed n. 4. Court 1325 The Druhan litigation the merits and one that 'ends the on concerning though, of cases dis that the line nothing the court to do but leaves more for “distinguishable prejudice missals without " McMahon, (quoting judgment’ execute the appellant at [because] from the case hand 1338)). F.3d at bring again, the case this case is not free Walker, is adverse to the remand order of its claims. See Howard v. final not adverse as to the but Ga. 249 S.E.2d (holding merits, and thus no case or controver- actions, that in legal malpractice “for the Woodard, sy exists. See 170 F.3d at 1044 plaintiff produce to recover he opin- must (stating that there was no case or contro- testimony ion witness”); of an expert versy judgment as to the final because the Perrie, Buker, Jones, Schluter v. Stagg & plaintiff requested it after remand was P.C., 776, Ga.App. 230 498 S.E.2d 545 denied, implying and that both the district (1998) (“The presumes law that lawyers and anticipated court the defendants that perform legal services in an ordinarily plaintiff his counsel intended to and/or skillful manner. presumption This re- elsewhere); Druhan, re-file the claims 166 attorney mains with the until presump- at that (stating required F.3d “the tion by expert legal is rebutted testimony; lacking” adverseness is as to the final grant otherwise the of a summary judg- plaintiff specifically that “the re- ment in favor of the attorney proper.” Druhan, quested”); see also 166 F.3d at (quotation omitted)).8 marks and footnotes (“Druhan (Barkett, J., concurring) ability still had the to make claim her Second, this attorney case involves an ERISA.”). under candidly who informed the district court of the impact of its ruling sanctions on the But Druhan and not Woodard are plaintiffs case. Fitel’s counsel advised the directly point present here because the district court that interlocutory its sanc- ingredients case contains distinct factual ruling tions case-dispositive was and that that are critical to the adverseness issue. the court should terminate the case at that First, the interlocutory contested orders at point efficiency purposes rather than materially issue are different. Unlike the proceed pending with the other motions. remand at orders issue Druhan and The dissent treats sugges- Fitel’s counsel’s only Woodard concerned the forum only voluntary tion as judg- consent to a heard, where the cases would be the sanc However, against ment Fitel. the more excluding plaintiffs legal tions order here reading accurate and fairer of Fitel’s expert was coun- case-dispositive because it fore statements, sel’s presenting literally closed Fitel from both and in con- expert testimony whole, required prove professional text of the record as a is not that negligence, which was core element all Fitel consenting judg- was to an adverse court, In the allegations legal malpractice district EBG's counsel did not rate the with disagree object with or to Fitel's counsel's adding any independent allega out factual characterization of the district court's sanc tions, expressly alleges and latter count ruling case-dispositive. appeal, tions as On unjustly by receiving that EBG was enriched argues EBG now the district court's exclusion "defective, unskillful, compensation for and not, fact, expert case-disposi- of Fitel's was legal Georgia harmful advice.” And under expert’s testimony tive because the addressed law, § attorney’s neither an O.C.G.A. 13-6-11 attorney malpractice Fitel's claim and puni fee claim nor an O.C.G.A. 51-12-5.1 fiduciary duty, not its claims for breach of damages tive claim can survive without an enrichment, fees, unjust attorney’s punitive underlying award of relief on an claim. Mor damages. argument That lacks merit. As Inc., Pugmire Mercury, ris v. Lincoln 283 Ga. clear, complaint makes the crux of its (2007). Thus, App. 641 S.E.2d unjust fiduciary enrichment and breach of claims, pled, required proof Fitel's as all duty claims is EBG's failure to meet the stan attorney malpractice, and the imposed by attorney-client dard of care court, ruling, agreed all in the district was relationship. fiduciary Both the breach of case-dispositive. duty unjust incorpo enriсhment counts that, review expeditious Fitel to seek an since lowed only stating it but against

ment Gamble, 356 expert, ruling. Procter & required See had excluded the court (acknowl- 680-81, put at 985 expedite the case U.S. at 78 S.Ct. should the court ruling who seeks vol- edging form because rule that ruling in final case-dispositive. con- untary may dismissal but undisputedly inapplicable rule is when cluding that Third, the district importantly, interlocutory produc- plaintiff opposed sugges- counsel’s with Fitel’s agreed here “it invited dismissal after tion order and ruling was case- sanctions tion that way a only the merits” and as had lost on that court stated dispositive. district review”). Be- “seeking expeditious of ruling made of the sanctions the nature interlocutory sanctions order cause the regard to point.” at this case “dead the that case-dispositive opposed and Fitel was the case statement Fitel’s counsel’s merits, Fitel interlocutory order on the efficiency, the district for terminate should judg- final resulting adverse to the stands your sug- appreciate “I responded, the un- expressly that was based on ment And appropriate.”9 it’s I think gestion. con- ease-dispositive nature of the disputed willing stipulate to Fitel was because interlocutory ruling. Accordingly, tested expert sanctions fact that the court’s the the appeal Fitel’s satisfies both because this allowed ruling case-dispositive, was judgment a final statutory requirement of immediately rather than act the court to requirement par- and the Constitutional The court other motions. proceeding with final judgment, that are adverse to the ties stated, “And, upon based itself then appeal. jurisdiction we have to hear Fitel’s that the exclu- stipulation dispositive expert is a case sion of its the dissent’s Lastly, pause we to address event, The basis this action is dismissed.” dissenting colleague sug- concerns. Our was thus court’s dismissal district simply Fitel should have asked the gests case-dispositive nature of undisputed certify appealability district court to order. interlocutory sanctions its contested order under 28 U.S.C. expert exclusion on that case- by basing And its dismissal 1292(b). reasoning § has fatal flaws. Such event, effec- the district court dispositive First, the district court entered a final interlocutory tively that contested made § route direct- judgment, making the 1291 a final order. expert exclusion order ly applicable. requirement There is no factual dis- important Because of these § 1292 route before that a travel the tinctions, in Druhan precedent this Court’s § filing judg- a from a final here directly point not and Woodard is Rather, only question ment. here is Instead, question. toas the adverseness requisite adverseness as to whether to, factually closer and thus this case is satisfy that final exists Court’s deci- by, Supreme controlled Constitution, and does. in Procter sion Procter & Gamble. As 1292(b) Second, Gamble, § certification is on the merits of & Fitel had lost discretionary the district expert wholly with both the contested exclusion Furthermore, merely final order al- court and this Court.10 the district court’s to, Also, having ing yourself potentially, the whole during argument expert report 9. on the go away you simply file case because failed to the district court sanctions motion and before got report says you've to file.” the rule ruling, the court said Fitel's issued its counsel, why hard “That’s I find it so Corp., F.3d Jenkins v. BellSouth See you just nothing, subject- ... did believe Cir.2007) ("Under (11th section 1292(b) it, reasons, high efficiency § threshold for certifi- and that for sets should consider terminating prejudice In- case with prevent piecemeal appeals. cation to 1292(b) certification, case-dispositive due to the deed, § nature of the to obtain interlocutory order any because subse- litigant must show not that an imme- quent attempt would be insuffi- appeal will advance the termination diate ciently adverse and there would be no litigation also that the but jurisdiction. The suggests dissent the at- controlling “a of law question involves 1292(b) torney § instead should move for ground to which there is substantial and, fails, certification proceed ato opinion.” difference 28 U.S.C. 12(b)(6) Rule summary judgment deter- 1292(b). Most orders do Thus, mination. under the ap- dissent’s Although meet test.11 the district proach, attorney in Fitel’s counsel’s po- excluding expert court’s order sition faces an ethical dilemma. He can case-dispositive, it was nonetheless a dis- duty either fulfill his of candor and covery sanctions order where the chances responsibility ethical to the court forth- 1292(b) § review are slim.12 rightly informing the court that its ruling Third, the dissent advocates look case-dispositive and a final dismissal ing beyond the form of the final dismissal prejudice with appropriate is thus for effi- prejudice to the substance of the with ciency purposes, thereby surrendering Fi- underlying appeal. issue raised on How order, right appeal tel’s the court’s or above, ever, precedent as discussed our (2) litigate finality continue to a case he appeal establishes that is from a when legitimate proceed- knows has no basis for judgment, appeal final the fact that witness, ing expert just without an so Fitel substantively interlocutory concerns an ultimately challenge can the court’s case- See, jurisdiction. e.g., is no bar to ruling dispositive interlocutory order excluding Myers, (stating 916 F.2d at 673 “earli expert. interlocutory merge er orders into the fi hand, recognize On other we judgment, party may

nal and a appeal the (i.e., judgment adverseness as to the final latter to assert error the earlier inter here) prejudice pre- the dismissal with is order”). locutory interlocutory served when contested Fourth, and troubling, more the dis- case-dispositive order is and the district approach upon litigants sent’s foists prejudice court bases its dismissal with position counsel an untenable that is not interlocutory the fact that its decision dis- § required by case, § 1291 nor 1292 nor the posed of the entire and the ap- Constitution. Under the dissent’s consistently opposed has the order under- attorney candidly dismissal, proach, lying prevent dare not tell the final we such a ruling case-dispositive the court that its dilemma and also harmonize Druhan and 1292(b), Supreme both the district court and the court at the time of that Court decision. appeals granting However, case, exercise discretion about in Procter & Gamble and this ....”). interlocutory review judgment there was in fact a final entered case, 1292(b) making inap- ended addition, accept the dissent would plicable any jurisdictional event. The interlocutory mean orders that are case-dis- Gamble, question in Procter & which is direct- positive application but rest on the of settled here, ly plaintiffs relevant was whether the law are unreviewable. inviting judgment, losing that final after merits, discovery precluded juris- issue on the attempts 12. The dissent to avoid Procter & 1292(b) judgment. noting § diction over that final Gamble was not enacted impose decision to Fur- view of a district court’s & Gamble.13 Procter Woodard “sharply limited under Rule 37 is thermore, consistent with sanctions approach is this and a to a search for an abuse of discretion jurisdiction appellate the fundamental findings that the of the trial determination efficiency and avoid- judicial principles by the record.” fully supported court are by the highlighted appeals ing piecemeal Chevrolet, Corp., Inc. v. Gen. Motors Serra the waste of a It avoids dissent. (11th Cir.2006) 1137, 1146-47 summary 446 F.3d dismissal or through a going omitted); and citations (quotation marks already that it knows procedure Paine Blythe BankAtlantic v. Eastman judgment. get a final simply it lose will (11th Inc., Webber, F.3d rests on the approach this And because Cir.1994); Pesaplastic, C.A. v. Cincinnati interlocutory court’s that the district facts (11th Co., 1510, Milacron final case-dispositive and the ruling was Cir.1986). in turn. We discuss each prejudice, judgment was with is no more such an than an of dismissal

piecemeal Expert Testimony A. Exclusion of as the case ei- summary judgment order legal The district court excluded if the district court ther will end on Fitel violated expert because found remanded for further is affirmed or be 26(a)(2) Procedure Federal Rule of Civil if the district court is re- proceedings 26.2(C) by failing pro- Rule and Local anything, approach If is less versed. expert report witness until three vide its approach, than the dissent’s piecemeal discovery days expiration after the of the reliance on the encourages increased which (2) in “will- period, engaged and Fitel had statute. interlocutory appeal delay report, in which producing ful” the reasons, juris- conclude all these we For “stonewalling.” as Fi- the court described exists under diction over argues tel the district court abused its § Now we and the Constitution. expert in excluding discretion its because appeal. of Fitel’s turn to the merits affidavit, timely produced expert’s fundamentally complied the affidavit RULINGS III. SANCTIONS rules, discovery the the rules do not re- appeal challenges these expert’s report produced to be quire its (1) discovery motions: rulings on EBG’s and, discovery, any the of before close exclusion of Fitel’s ex the district court’s event, any the record establishes that de- untimely pert produc a for its sanction substantially justi- lay report as to the was expert report; tion of Rafuse’s written and fied. claim for striking the court’s of Fitel’s 26(a)(2), a refusal start with Rule which attorney’s fees as sanction for its We attorney’s requires fee a to disclose to the other produce copies of its any expert attorneys’ parties identity bills. Our re- the of witness agreement and Congress, litigation”) question quite with the different 13. The dissent also states 1292(b), enacting "required § that the interlocutory already district whether the order en- dispositive of the judge determine the effect nothing case-dispositive and left tered perfect entered. This makes order it has litigation except judgment appeal. the and However, its discussion conflates sense.” recognize the of a The dissent fails to effect 1292(b)'s (requir- standard for certification interlocutory district court's contested things, ing, among that an immediate other being plain- already case-dispositive on the order "material- from judgment. tiff's adverseness to the final ly the advance the ultimate termination of Rather, evidence and here may present dispute only use at trial concerns timing of the disclosure of the stipulated expert’s or direct “[ejxcept as otherwise 26(a)(2)(C) that, report. provides Rule court, ab- this disclosure shall ... be by ed order, stipulation sent a or court the ex- accompanied by report prepared a written pert report must be disclosed “at least 90 signed by witness.” Fed.R.Civ.P. “ days before the trial date or the date the 26(a)(2). Thus, expert ‘[disclosure ready case, case is to be for trial.” In this testimony’ meaning of [Rule within 26] however, no date had been set for the trial contemplates not the identification of or for the ready case to be for trial.14 provision also the expert, [the but Nonetheless, argument the heart of EBG’s expert’s] report.” written Reese v. Her 26.2(C), is that Local Rule when read with (11th bert, Cir.2008); 527 F.3d 26(b)(4)(A), requires Federal Rule disclo- Malgor, see Prieto v. 1317— expert sure of Fitel’s report before the (11th Cir.2004). expert’s written discovery close of expert so can be report must contain: deposed discovery period. within the opinions a statement of all complete Reese, recently this Court examined expressed and the basis and reasons timing the same Local Rule and the of the therefor; the data or other information expert’s disclosure of an report when a forming considered the witness yet trial date had not been set.15 The any exhibits to be used as a opinions; Reese Court first stated that “Rule 26 does summary support opinions; of or for the prescribe specific applica- deadline witness, qualifications includ- expert’s ble” for disclosure of the written ing publications of all list authored report “because a trial date had not been preceding within the ten witness set.” Id. at 1265. The Court Reese years; compensation paid to be 26.2(C)’s require- then reаd Local Rule study testimony; listing 26(b)(4)(A)’s ments, along depo- with Rule any other cases in which the witness has prerequisite, sition and determined that expert by depo- testified as an at trial or expert’s both the name report and should preceding years. sition within the four discovery. be disclosed before the close of Id. Here is how reached that con- Reese 26(a)(2)(B). Here, it un- Fed.R.Civ.P. is clusion. disputed complaint that Fitel’s identified 3, expert and on its November 2006 Fitel The Reese Court first stressed that Rule produced report a written that contained “expert 26’s disclosure rule is intended to required by all of the information Rule provide opposing parties oppor- reasonable 26(a)(2)(B). tunity prepare to for effective exami- cross 16.4(A), expert 14. EBG filed its exclusion on filed. Local motion has been See Rules 40.1. 23, 2006, case, discovery October was set to close pretrial There was no order in this no 31, 2006, produced and Fitel trial, October its ready date set for the case to be for and expert report By on November 2006. Lo- no date trial set. scheduling cal Rule and the court’s order the parties twenty days had to file motion for here, quoted interpret- 15. we do Reese and As summary judgment after the close of discov- ed the of Civil Procedure as Federal Rules 56.1(D). ery. N.D. Ga. Civ. Loe. R. The See general they phrased the were in before parties thirty days then had after the court restyling that became effective December motion(s) summary judgment rules on the Reese, 18; 527 F.3d at 1264-65 & n. pretrial file a consolidated order. The case is supra n. 2. see "presumed ready for trial” on the first trial pretrial calendar after the consolidated discovery in advance of the close expert ly for tes- arrange perhaps nation and Reese, opportunity an to de- witnesses.” furnish defendants timony from other omitted). marks (quotation a rebuttal expert F.3d at 1265 that and obtain pose “in noted that accor- then Reese Court discovery period. The Id. during the expert Rule Local purpose,” this with dance Here, produce Ra- Fitel did not desig- 26.2(C) “shall that requires until after the close of report written fuse’s early in “sufficiently the expert nate” its Thus, Ra- discovery. Fitel’s disclosure of (1) op- permit “to the discovery period”: close of report after the fuse’s written depose the opportunity party the posing Local (2) discovery ran afoul of Rule 26 and desired, its “if to name expert”; 26.2(C), in interpreted Reese.17 expert the second Rule so that expert” own the close of “prior to deposed also be could inclusion of Rafuse’s ex- argues its Local Rule (quoting Id. discovery.” enough in pert complaint affidavit 26.2(C) 26.2(C)).16 Rule does Local While Rule 26 and Local Rule comply report, written expert’s not reference 26.2(C). Rule 26 mandates disagree. We deposed “pri- expert be require it does report written contain expert’s discovery.” The Reese the dose or to expert’s information —such as the specific 26(b)(4)(A) Rule out that pointed Court study testimony, compensation for deposed expert to be permit does expert authored publications list of all to the report provided is until after her years, ten and a list of all preceding in the syllogism party. Id. opposing trial expert testified at cases which (1) expert must to be: appears Reese four by deposition preceding discovery the close of deposed before 26(a)(2)(B). All of years. Fed.R.Civ.P. (Local (2) 26.2(C)), report must Rule Ra- wholly information is absent from this (Rule deposition expert’s come before type fuse’s affidavit. This of information 26(b)(4)(A)), expert’s therefore the report written required expert’s is in the necessarily must come before report important informa- precisely because Reese, discovery. Court close of necessary attorneys preparation tion filing of his ex- plaintiffs concluded Moreover, deposing expert. after the close pert seven weeks affidavit than affidavit does little more assume discovery response and in to defendants’ and, on that complaint’s facts are true violated Rule summary judgment motion basis, departed 26.2(C) opines generally EBG because disclo- 26 and Local Rule of care professional from the standard not expert’s report the was before sure of advising suggested ap- not Fitel that its discovery, much less sufficient- the close of permitted testimony Georgia not be to offer the District of Civil Local 16. Northern 26.2(C) party's expert, expressly Rule states: author- the unless upon showing testimony by court order based a Any party desires to use the ized who designate the expert comply justified. witness shall of an the failure to sufficiently early discovery expert 26.2(C). in the Local Rule oр- permit opposing the period to the and, depose expert de- portunity to the Although May Reese was decided in sired, expert own witness suffi- to name its after the 2006 conduct at issue here well discovery ciently the in advance of close briefing appeal, the in this EBG maintained discovery deposition a so that similar throughout and Local this that Rule 26 might expert also be conducted the second 26.2(C) together in should be read the Rule discovery. prior close togeth- way now reads them same that Reese Any comply with the party who does not er. foregoing provision paragraph shall of the proaeh dip” might clearly authority to the “double issue district court has to ex- provides ADEA. The affidavit violate the expert’s clude an testimony where a party analysis why of how and meaningful no 26(a) comply has failed to with Rule unless actions breached the standard of EBG’s is substantially justified or is failure report ultimately care. The Fitel written 37(c)(1); harmless. See Rule Local Rule hand, produced, provides on the other 26.2(C).19 The district court’s sanction was analysis expert level of detailed finding based on its engaged Fitel had requires. simply disclosure rule It came in delay “willful” in producing Rafuse’s too late. expert report, written which the court Alternatively, argues Fitel it could not “stonewalling.” characterized as While produce meaningful legal expert report the district court did not use the term taking depositions without first justified,” “substantially finding court’s attorneys represented EBG who had Fitel delay that Fitel’s was willful and “stone- regarding dipping” policy its “no double walling” effectively finding of no such reviewing transcripts. and then those Fi- justification. argues substantial Fitel in justified produc- tel contends it was not undisputed facts sup- record do not ing report until those depo- after EBG port the willfulness/stonewalling finding, it repeatedly sitions and advised EBG that only but establish justification. substantial rescheduling depositions EBG’s would agree We and explain why. later, delay report. As discussed First, this is not a complete case of argument, along undisput- this with other provide failure to information about an record, provide ed facts substantial expert witness. Fitel identified Rafuse as justification they for Fitel’s conduct but do it expert complaint, its when filed its con- negate timing require- the fact that the designation firmed that post-removal ment in the rules was violated.18 As this disclosures, initial filed affidavit of Reese, “compliance noted in Court with the Rafuse with at least some information requirements merely of Rule 26 is not opinions. about her Reese, aspirational.” 527 F.3d at 1266. Second, repeatedly told EBG

Nevertheless, determining that attorney depositions needed the EBG be- Fitel violated Rule 26 and Local Rule report. early fore Rafuse could do her As 26.2(C), Reese, interpreted comprises as well June before the end of the inquiry. half the still must con We discovery period, Fitel’s counsel informed imposed by sider whether the sanction report EBG that Rafuse’s district court was within its needed “take discretion. Here, deposition testimony” the district court excluded into account the Rafuse’s 37(c)(1), expert testimony. attorneys depositions Under Rule the EBG whose harmless, permitted 18. We note that EBG’s motion for an exten- to use as evidence at tri- discovery al, sion of asked for an extension hearing, any at a or on a motion witness or 13, through December 2006. EBG’s motion (Emphasis information not so disclosed.” shows that EBG knew Fitel needed the EBG added). 26.2(C) Similarly, pro- Local Rule attorney depositions producing before a com- any party comply vides that who does not 13, plete report and that December 2006 was provisions foregoing para- with the in the a more realistic time frame. 16) graph supra permit- n. "shall not be {see testimony party’s ‘expert, ted to of the offer 37(c)(1) provides 19. Rule that "[a] expressly unless authorized court order justification without substantial fails to dis- upon showing based that the to com- failure 26(a) required by close information Rule or added.) justified." ply (Emphasis not, 26(e)(1) ... is unless such is failure 13, discovery August from 2006 until De- scheduling and that Fitel “be- parties were 13, completed within that it was can be cember 2006 and even noted report her lieve[d] completion of these thirty days ... in Fitel “informed part needed because 12, 2006 letter See June depositions.” expert report pre- four will be that no [EBG] counsel. to EBG’s Fitel’s counsel thirty days from pared approximately ... until 2006, Moreover, Fitel, May in noticed also deposes attorneys certain em- after [Fitel] attorneys for of the EBG depositions EBG,” and that such ployed “[o]nce four weeks June, affording EBG over late it, will expert report [EBG] is furnished deposi- If these EBG notice. of advance expert and eval- depose want said [time] in late as scheduled tions had occurred necessity identifying expеrt uate the June, report would have Fitel’s Rafuse in thereto.” EBG well testify response late-July. timely in mid- to produced been only after report knew Fitel’s would come had because once Fitel know that We was no ele- depositions. the EBG There depositions, produced it those four EBG surprise ment of to EBG about when eighteen days. in report Rafuse’s going provided. to be expert report was depositions tak- Rather than those EBG importantly, no trial Fourth and most June, cooperat- in Fitel’s counsel ing place for the case had been set or was date to schedule those ed with EBG’s counsel produced expert imminent. Fitel Rafuse’s convenience, attorneys’ at the depositions 3, 2006, had report on November and EBG completed depositions were not and those deposition in ample time to take Rafuse’s Indeed, 27, 2006. Fitel September until designate November 2006 and its rebuttal scheduling after dif- position reiterated its expert.21 There is no claim here that the regard to the EBG ficulties arose ability to passage of time affected EBG’s expressly reminding attorney depositions, legal or the abili- employ expert a rebuttal 11, July 2006 letter counsel EBG’s ty analysis. expert of its to conduct needed thirty approximately that “we will need days completion ... after the of the EBG Fifth, plain- this is not a case where the expert finalize lawyer depositions to our rather, anyway; tiff knew all the facts report” depositions could and that those reasonably depositions Fitel needed the mid-September, until not be scheduled attorneys it the defendant EBG’s before “you expect expert report our should Here, produced legal expert’s report. its until Fitel obtained mid-October.”20 Once not much in- the issue involves so attorney EBG transcript of the final EBG, teraction with which would deposition, promptly produced it the ex- case, have known at the but outset pert report, agree com- parties which the actions, investigation, what and research 26(a)(2)(B). plies with Rule occurred within the confines of the law advice,

Third, firm noteworthy gave alleg- in June before EBG or edly any ADEA give EBG moved for an extension of failed to advice itself supra hearing filing 20. At n. 14. The on EBG’s no time before its October See 21. expert testimony 2006 motion to exclude did discovery motions was not until December complain object EBG tо Fitel’s disclosed parties cooperated ‍‌​‌​‌​‌​​​‌‌‌​‌​​​​‌​‌​‌‌‌‌‌‌‌‌‌​​‌​​‌‌‌​​​​​​​​‍Just as the plan expert report when the submit its scheduling attorney depositions the EBG attorney completed depositions EBG were through September, they easily June could expert opportunity and Fitel’s had an to take cooperated scheduling depo- have Rafuse’s testimony account the EBG fact into deposi- sition in November 2006 and then the professional witnesses about whose conduct expert. tion of EBG’s opine. she was asked to Instead, Certainly, report expert. of its the crux of the case. we conclude forms attorneys advice the EBG undisputed Fitel knew what that the facts show Fitel had dipping it and what the no double gave to justification substantial for its conduct as said, attorneys’ depositions policy but the expert report, to its that the record does at- required to show what the EBG were support not the district court’s willful-de- did, knew, torneys rendering and before lay determination that report, as to and it, render as Fitel failing that advice or to thus district court abused its discretion alleges.22 in excluding expert testimony. Rafuse’s Therefore, we reverse the district court’s sum, in undisputed

In facts the rec- exclusion of expert subsequent and produce that Fitel failed to its ord reveal complaint dismissal of Fitel’s entire willful legal expert’s report through not (1) prejudice proceed- and remand for further delay stonewalling, or but from: a ings. attempt to accommodate the good-faith attorneys deposi- in their scheduling

EBG (with tions over several months the last Attorney’s B. Dismissal Fees Claim 27, 2006, occurring September on one Fitel challenges also the district court’s discovery), shortly before the end of rather to attorney’s decision dismiss Fitel’s fees insisting taking than Fitel’s on all the EBG a failing claim as sanction for Fitel’s noticed, attorneys’ depositions on the fixed produce attorney’s agreement its fee and 2006; good-faith in and a dates June attorneys’ bills incurred in the instant pro- “practical! ]” belief the more case. The district court found that there way discovery in ductive to structure this complete by was a and willful failure identify legal negligence case was to provide required EBG with the docu- legal expert, engage in all relevant fact given expressly ments that Fitel sought to discovery attorneys, of the EBG and then attorney’s recover its fees incurred in this written prоduce expert’s report case. Further, engage expert discovery. in imposed The district court the sanction approach given this was reasonable 37(d) 37(b)(2)(C). .pursuant to Rule nature of the case and the actual need for 37(d) attorney depositions in order to have Rule states that those meaningful legal expert report. fails ... response to serve written to a request inspection submitted under Simply put, given particular all these case, re- proper factual we can- Rule after service of the circumstances say quest, the court which the action is supports the record the district finding pending may make or- engaged court’s that Fitel willful motion such “stonewalling” delay regard just, the written ders to the failure as are Reese, contrast, by rejected concerning this Court van! events the arrest and use of plaintiff's argument (stating expert id. that his failure to force. See at 1266 Reese’s expert's opinions report upon disclose his until seven "could have rendered a ... based discovery assumptions after the him weeks close of then factual furnished to —and Reese”). Further, response in his to the defendants’ written disclosures sum- Reese’s mary judgment substantially identify expert, verbally motion—was did not his counsel justified expert only days because he needed the defendants’ identified the twelve before closed, depositions. discovery oppos- 527 F.3d at Reese in- and Reese never sent 1265-66. (or ing report volved a 42 U.S.C. counsel a written at all other excessive force arising expert) simply plaintiff's claim from the arrest information from his but filed police Obviously, expert’s opposition defendant officers. in that affidavit in to the de- present summary judgment case the for all the rele- fendants’ motion. 1366 is willful or in bad faith. Id. at may any compliance take action others it among

and (A), 1317-18.24 subparagraphs under authorized (b)(2) (C) of this (B), of subdivision attorney agreement As to Fitel’s

rule. bills, attorney’s is record evi there 37(d). turn, Rule Fed.R.Civ.P. support to the district court’s find dence 37(b)(2)(C) permitted as a lists dismissal willful failure to ing complete of a may sanction, that the court issue stating discovery requests. comply with EBG’s striking pleadings parts or out order “[a]n responsive to EBG’s Docu The documents thereof, un- staying proceedings further or directly Request ment were relevant to obeyed, dismissing or til the order is attorney In its an Fitel’s claim for fees. any part or рroceeding action or thereof Request, Fitel first swer to the Document ” by default .... rendering a or responsive docu agreed produce to added). 37(b)(2)(C) (emphasis Fed.R.Civ.P. (redacted protect privilege), ments to Thus, as a permit rules dismissal these follows: produce documents. for failure to sanction objects Request to Number 32 to [Fitel] rules, these same this Construing improperly privi- the extent that it seeks concluded, a appropriate, “where Court leged [Fitel] communications between pleadings, to strike court authorized is objects further and its counsel. [Fitel] any or stay dismiss action proceedings, to the Request to Number 32 extent thereof, judgment by a or render part information that is not relevant seeks against party.” a disobedient default any claim or defense asserted Prop. v. Real Locat Subject United States Certain waiving action. to and without Ala., 1314, 1, Bryant, 126 F.3d foregoing objection ed at Route and the General Cir.1997).23 (11th However, Objections above, we also produce 1317 will [Fitel] may impose a court Num- responsive Request indicated that district documents of dismissal of a claim ber that reflect the of attor- the severe sanction 32 amounts only party’s neys paid by non- fees billed to and prejudice [Fitel] with where 924, (11th Cir.1993); 23. The Route 1 Court noted that Rule 37 on 934 Cox v. Am. Cast Co., 1546, require formally (11th its not that a court Pipe face does Iron 784 F.2d compelling discovery Techs., Inc., issue an order before Cir.1986); McKelveyv. AT&T are authorized. 126 F.3d at 1317. sanctions (11th Cir.1986). F.2d "The trial However, the Court concluded that a district regarding discovery court’s discretion sanc- may impose pursuant sanctions consistently tions not unbridled. We have is 37(d) party's a claims in Rule dismiss held while broad district courts have compel a "the absence of either motion to powers impose under the rules to sanctions [opposing party] filed or order of ..., justified only dismissal is in extreme cir- compelling discovery." the court Id. at 1318. Wouters, and as a resort.” cumstances last court, Here, however, EBG did move the al- (citations omitted). F.3d at 933 In Route sanctions, ternatively for an to its motion order, prior discovery where there was no we compelling produce Fitel to the records order recognized showing a the need for of bad substantiating attorney’s fees claim. delay support faith or willful the sanction of dismissal. See Route 126 F.3d at 1317— prior In cases where there has been discovery, delay rеquired compelling this Court has 18. If bad faith or willful is stated that the sanction of dismissal support prior ultimate there dismissal where prejudice imposed only order, should be discovery certainly required it is where faith, delay, flagrant cases of bad willful compel, there as in motion to discovery disregard court’s or- for the district case. Fla., County, ders. v. Wouters Martin 37(b)(2)(C) 37(d) (redacted, given Rule necessary, to der its action this information). finding complete of a and willful failure to protect privileged comply Discovery Request. with EBG’s entreaties, Nevertheless, despite repeated Thus, say we cannot the district court Instead, nothing at all. produced Fitel abused discretion in its its dismissal of (1) unilaterally that a sum- Fitel decided attorney’s claim pursuant Fitel’s fees to bills—rather than the mary of its counsel’s 37(d) 37(b)(2)(C). Rule requested and Fitel stat- documents EBG provide it would with redactions —would ed sufficient, told EBG that and then IV. CONCLUSION summary produced would not be even the above, For the reasons set forth we challenge not to agreed

until EBG reverse the district court’s exclusion of sufficiency production. Fitel’s At the of expert witness and dismissal of Fi- hearing of the motions and court’s time complaint tel’s entire affirm its but dis- produced had ruling, Fitel still sanctions attorney’s missal of Fitel’s claim for fees. all, summary not even the nothing at the district We remand case to court underlying agreement. The district proceedings for further consistent with also found that Fitel’s conduct court opinion. coun- strategy by evinced a and/or PART, AFFIRMED IN REVERSED judge make the going sel of “we’re to PART, IN AND REMANDED. attorney’s fees produce order us to” documents.25 TJOFLAT, Judge, dissenting: Circuit sum, Fitel’s conduct as to its attor- axiomatic, history It is a matter of as attorney as

ney’s agreement and the bills fee doctrine, well as the existence of starkly cooperative different from its jurisdiction specific in a federal expert appellate re- conduct as to Rafuse’s written Further, given type depen- court a of case is may while we have chosen over port. (such upon authority expressly dent conferred awarding a different sanction as jurisdictional by statute. And since the filing its costs in its motion to com- EBG are prevailing any given of sanc- statutes at time pel), the district court’s choice history the whole attorney’s product fee so much a tion—dismissal and limitation of federal- range options growth un- of both claim—was within its banc) 37(d) (accepting binding prеcedent all provides a court 25. Rule district lew fails, among may who other sanction decided before October Fifth Circuit cases things, objections to 1981). "to serve answers or particularly This is true where interrogatories under Rule 33” or submitted response produce the docu- said Fitel would response request “to serve a written to a produced nothing Fitel then at all. ments and inspection under Rule 34.” Al- submitted willing recognize it was We Fitel later stated though response Docu- Fitel served produce summary and ex- of the fees enough Request, to insulate it ment that is not penses agree if EBG would that Fitel’s sum- 37(d) these from a Rule sanction under facts. discovery dispute. mary Howev- resolved the Litig., Plywood 655 F.2d See In re Antitrust er, point that Fitel had an this misses the (5th 1981) (affirm- Sept. Cir. Unit A produce something obligation and could 37(d) ing imposition Rule a district court’s produce nothing simply say it un- would interroga- respond sanctions for failure adequacy agreed to the less EBG advance stating appropriate that "under tories summary even of its that EBG had not seen. circumstances, incomplete an- evasive and minimum, Fitel, readily pro- at a could have ... are tantamount to no answers at swers agreement fee and revealed duced its (citations omitted)); City v. all” Bonner charged the fees to date. amount of Prichard, Cir.1981) (11th the First Judicia- from a district court order if Con jurisdiction since Act, they always interpret- has, statute, been ry gress by have conferred the court history See, of that and of the light jurisdiction. ed in the e.g., with Kirkland v. statutory mandate Co., 1277, axiom that clear Mortgage Midland jurisdiction. (11th Cir.2001) (“Article must exist to 1280 III of the found provides of Constitution the outer limits States, 394, 399, 354 v. United U.S. Carroll jurisdiction the federal courts’ vests 1332, 1336, 1 L.Ed.2d 1442 77 S.Ct. added). (citations omitted) Congress power to determine what the (emphasis De- jurisdiction extent of the lower courts’ will spite guidance Supreme this from the be.”). Second, Congress to the even where has precedent and our court’s Court today contrary, majority jurisdiction, a of this conferred re Constitution party aggrieved holds that a certain quires that there must exist a real case or Const, can tradi- interlocutory bypass III, orders controversy. § art. U.S. requirements governing tional discretion- Hartford, See also Aetna Ins. Co. Life of review, interlocutory see ary appellate Haworth, 240-41, Conn. v. 300 U.S. 1292(b), § (1937) (“A U.S.C. and instead automatical- 461, 464, S.Ct. 81 L.Ed. 617 ly appellate review manufactur- receivе ‘controversy’ in this sense must one ing judgment through inviting a final judicial appropriate for determina voluntary district court to enter a dismiss- justiciable controversy tion. A is thus dis prejudice. majority’s al Because the tinguished dispute from a difference or of at fundamental decision is odds with both character; hypothetical or abstract from appellate jurisdiction prior and our tenets one that is academic or moot. The contro I precedent, respectfully I dissent. Part concrete, versy must be definite and touch explains case the back- applies ing legal parties having relations of ju- ground principles animating appellate legal adverse interests. It must be a real judiciary’s long-standing risdiction and our controversy and substantial of admitting policy re- disfavoring piecemeal appellate specific through relief decree a conclu prece- view. Part II the direct discusses character, distinguished sive from dent that I the disposition believe controls opinion advising what the law would be precedent majority of this that the facts.”) (cita case— upon hypothetical state of skirts Part III ignores. around and brief- omitted). tions I address in turn both ly guidance concludes with for future liti- principles they apply these and how in this gants proper way proceed on the when context. dispositive discovery faced with a case mo- tion. A.

I. rule, general As a Congress has statuto- rily jurisdiction any jurisdictional analysis by We start conferred broad to the being princi- appeals mindful of two fundamental courts of to hear decisions final First, ples authority. § that limit our court’s from district courts. 28 U.S.C. 1291.1 appeals a court of can A litigation entertain an final decision “ends the on the provides 1. 28 U.S.C. 1291 that: trict Court for the District of the Canal Zone, Guam, (other appeals District Court of and the The courts of than the Unit- Islands, Appeals Virgin except ed States Court the Federal District Court of the Circuit) jurisdiction appeals shall have may where a direct review be had in the from all final decisions of the district courts Supreme Court. States, of the United the United States Dis- See, jurisdiction. tory appellate e.g., for the court to nothing leaves merits and § 3626(f)(3)(providmg right v. for “the judgment.” Catlin U.S.C. but execute do States, interlocutory judge’s 65 S.Ct. 324 U.S. United (1945). 631, 633, Although special selection of the master” under the 89 L.Ed. 911 Litigation Prison Reform Act provisions). “final rule” servеs the so-called Thus, objectives Congress central are when has chosen to allow many purposes, the judicial parties efficien to seek immediate policies ap- promote review, litigation, preserve pellate explicitly. and it has done so cy, piecemeal avoid district courts. See independence of stated, discovery As we have often mo- Aggregates, Ltd. v. Forest Com Constr. generally tions are not final orders for (11th 1334, Corp., 147 F.3d 1336 modities purposes jurisdic- obtaining appellate of Cir.1998). appeal “If a seeks to Indus., Inc., Carpenter tion. v. Mohawk court order that does not consti district (11th 1048, Cir.2008). 541 F.3d 1052 (and § a ‘final decision’ under 1291 tute Therefore, discovery normally orders are exception an to the not fall within does Id.; immediately appealable. Rouse rule), must dismiss the final we Int’l, Constr. Inc. v. Rouse Corp., Constr. jurisdiction.” appellate lack case for of (11th Cir.1982). 743, 680 F.2d 745 Con- (11th Carrillo, 325 F.3d SEC v. gress statutorily has not authorized inter- Cir.2003). locutory appellate discovery review for mo- tions, instances, though, Congress policy and for sound reasons —the In certain appeals jurisdic- preservation integrity the courts of of district court granted has promotion judicial efficiency interlocutory, hear non-final orders. of dictates tion to ju- parties should not be to circum- example, Congress For has conferred able interlocutory appeals by seeking piecemeal with vent lower courts risdiction over Instead, In- respect injunctions,2 receiverships,3 appellate through review. determining rights terlocutory Appeals Congress Act of admiralty decrees Moreover, procedure for parties.4 and liabilities of the created bi-level establish- jurisdiction general grants ing appellate to these of inter- to review non- addition authority, has final in civil actions. See 28 U.S.C. locutory appellate Congress orders 1292(b).5 1292(b), § appel- Under section provided specialized at times interlocu- ("[T]he 1292(a)(3) 1292(a)(1) § § courts of courts of 4. See 28 U.S.C. C'[T]he 2. See 28 U.S.C. jurisdiction appeals jurisdiction appeals appeals appeals have of of shall shall have Interlocutory of the Interlocutory from ... orders district such district from ... decrees of States, judges determining courts of the United the United States thereof courts or Court for the District of the Canal rights parties District admiral- and liabilities of the Zоne, Guam, and the the District Court ty appeals final decrees cases in which from Islands, Virgin allowed”). or District Court of the are thereof, judges granting, continuing, modify- ing, refusing dissolving injunctions, re- or or 1292(b) § 5. The full text of 28 U.S.C. is as injunctions, fusing modify ex- to dissolve or follows: cept may had in the where a direct review making judge, in in a civil When a district Court”). Supreme appealable action an order not otherwise section, ("[T]he opinion 1292(a)(2) shall be of the under courts of 3. See U.S.C. controlling ques- jurisdiction appeals that such order involves appeals have shall Interlocutory appointing tion of law as to which there is substantial ... orders re- from ceivers, opinion up ground and that refusing orders to wind receiv- for difference may appeal erships steps accomplish an from the order or to take immediate thereof, directing materially the ultimate termination purposes sales or advance such as writing litigation, he shall so state in disposals property”). other discretion, may, appeal interlocutory discovery at their review an from an late courts judge if a trial stated, non-final orders certifies previously order. As we have controlling ques- involves a that the “order when an from a final order is mere- there is substantial tion of law as which ly masquerading as an appeal from ground opinion for difference of and that order, interlocutory jurisdiction we lack may from the order an immediate hear the case. See Druhan v. American materially the ultimate termi- advance (11th Life, Mutual litigation.” Id. nation of the Absent both Cir.1999) (“In substance, this is not an judge accep- from a trial certification judgment, from a final an ap- but appeal by Ap- tance of the the Court of peal from .... peals, parties permitted are not to have problem approach is that it [this] discovery immediate review of orders. authorized.”). statutorily is not jurisdictional prin- As axiomatic as these Congress statutorily Since has not au- seem, case, ciples might present in the approach, thorized this I believe that Fitel BrightWave OFS Fitel LLC OFS should not be allowed to circumvent the “Fitel”) (collectively engineered have LLC prescribed juris- boundaries of our court’s jurisdictional gymnastics a scheme of appeal by diction and receive an automatic 1292(b) the section trial court circumvent requesting that the district court enter an certification/appellate acceptance re- form, only order that is “final” but Here, quirement. presented an when with in substance. order, discovery adverse Fitel did not seek 1292(b) section certification from the dis- Instead, sought

trict court. Fitel immedi- B. by appellate asking ate automatic review However, if even I were to the district court to dismiss the entire case concede that form, order, appealing Fitel is a final prejudice.6 While Fitel has this Court (albeit presented appeal jurisdiction a final for a still does not have to hear this appeal final requisite question order without the adverse- because the final order in ness, next), an issue that I address here lacks the requisite Constitutional of appeal substance of the reveals that this is point adverseness. It is this that I next Appeals in such order. The Court of hearing, which at the December 15 "counsel for the jurisdiction have an that, would suggested pro- Plaintiffs ... in lieu of may thereupon, such action in its discre- ceeding remaining pending with the discovery tion, permit to be taken from motions, simply proceed the Court to dismiss order, application such is made to it case,” January 7 order stated: "based days entry within ten after of the order: stipulation on [Plaintiff's] that the Court’s rul- Provided, however, application That for an ing [excluding expert is witness] 'case stay proceedings hereunder shall not dispositive,' the Court dismissed the case.” judge in the district court unless the district Appeals judge or the Court of or a thereof disputed If Fitel the district court’s charac- shall so order. proceedings, proper terization of the ave- objection through nue to raise an briefs, is Rule objects 6. In its Fitel to this character- 59(e) of the Federal proceedings. ization Rules of Civil Procedure. of the lower court Fitel 59(e) suggests merely presented provides parties instead that it option Rule with the district court with the information that its petitioning the court alter or amend a However, dispositive. sanction was case judgment. pursue Fitel Because did not strongly suggests sought record that Fitel route, we must assume that Fitel did not prejudice. dismissal with The district court’s dispute the district court’s characterization January dismissing 2007 order the case prejudice. the motion to dismiss with that, Referring confirms this fact. to the fact matter, prejudice. supra See it is clear dismissal with note As a formal address. jurisdiction to review the 6. Because there was no adverseness have no that we case, there is no have no party, in this because either we case controver- judgment jurisdiction of controversy. sy. Accordingly, Constitutionally The we are case or courts, III of under Article hearing the federal barred from the case before us. Constitution, limited to “Cases” and U.S. majority tries to circumvent Const, III, § art. U.S. “Controversies.” requirement Constitutional of adverseness controversy At the heart of the case or noting Fitel is adverse to the mer presence is the of adverse requirement is, its decision—that Fitel did not Sylvania, Inc. v. Con parties. See GTE dismissal, desire the case but accept States, Inc., sumers Union the United prejudice ed the dismissal with because 375, 382-83, 100 S.Ct. 1199- 445 U.S. the district court had entered case-dis- (1980). 1200, L.Ed.2d 467 Indeed, positive majori order. under the Supreme previously As the Court has ty’s reading, merely “suggested” noted, purpose of the Constitutional “efficiency reasons” the court should “lim case-or-controversy requirement is to “in final place form of ques courts to it the business of federal case termination.” Even if that is the adversary context presented tions suggest case—which the record does not historically capa in a form viewed way one or the other —then Fitel should through judicial pro of resolution ble objection have raised at least some and at Cohen, 83, 95, 392 88 cess.” Flast v. U.S. 1292(b) sought least section certification of (1968). 1942, 1950, 20 L.Ed.2d 947 S.Ct. order. Fitel’s failure to Moreover, parties of adverse the clash objection any type raise of to the dismissal upon “sharpens presentation of issues prejudice finding necessitates a that with largely depends the court so which cannot hear this case for lack of a real we questions.” ... illumination of difficult Moore, controversy.” “case or See 402 Carr, 186, 204, Baker v. 369 U.S. 82 S.Ct. at U.S. at 91 S.Ct. 91 S.Ct. 1292 (1962). 691, 703, According 7 L.Ed.2d 663 (stating litigants that when “both desire III contro ly, there is no Article case or result,” precisely the same there is “no versy parties “precisely desire when the controversy meaning within the case Moore v. Charlotte- the same result.” Constitution”); III also Art. of the see Education, 402 Mecklenburg Board of Roberts, 202 1312 Reynolds v. F.3d 1292, 1293, 47, 48, 91 S.Ct. 28 L.Ed.2d U.S. (11th Cir.2000) (“a party normally has no curiam). (1971) (per 590 standing judgment to to which he imposes This mandate Constitutional consented”). or she ability to serious restrictions on our court’s Accordingly, I that this court is believe disregard are nоt free to hear cases. We hearing Fitel’s for both incapable of require- the Constitutional adverseness statutory jurisdiction and the the lack of merely ment because we desire to reach requisite lack ad- Constitutional a claim. This case is no merits of majority ax- Here, ignores verseness. The these dispute it is without exception. principles in an effort to reach the Epstein, Becker & iomatic neither Fitel nor (“EBG”) Green, I both objected to the merits —a decision believe P.C. dis- authority with flouts limits on our and sends dismissing trict court’s order the case Indeed, litigants and the district prejudice. wrong message there was no reason circuit. object, judges and Fitel invited the of our for EBG 1372 motion, granted appealed the

II. court obtaining ap- for the purpose dismissal7 the Constitutional Con- Apart from interlocutory ruling.8 pellate review the jurisdiction, on limitations our gressional Druhan, 1325; Woodard, 166 F.3d at 170 that neces- precedent has direct this court cases, F.3d at 1044. In both we held that reach the that we do not merits sitates jurisdiction lacked to review the inter- we majority, in a appeal. The desire Druhan, locutory ruling. at F.3d claims, merits of Fitel’s limits reach the 1326; Woodard, 170 F.3d at 1044. Druhan Because prior the reach of our decisions. appealed had from a non-adverse final directly are holdings I believe that these “[njeither judgment; party contended] now to that point, my on I turn attention in entering the district court erred precedent. final for the defendant —the requested it plaintiff specifically and the A. (understandably) [was] defendant not com- Druhan v. American holdings Druhan, plaining.” 166 F.3d at 1326. As (11th Cir. Life, Mutual earlier, explained I have adverse parties 1999), v. Corp., STP Woodard indispensable are to the creation of the (11th Cir.1999), directly F.3d 1043 are controversy” required by “case or Article point and therefore should control our de III of an appeal the Constitution to enable cases, plaintiff, cision. In both after go parties forward. Id. Since adverse interlocutory ruling, suffering present, an adverse were not there was no “case or review, controversy” to dismiss the moved the district and the then, Druhan, prejudice, accordingly action after the dismissed. Id. Like appeals judgment dismissing were 7. Both Druhan and Woodard entered a final Dru- Druhan, brought prejudice. under section See han’s claims with 1325; Woodard, (footnote omitted). F.3d at 170 F.3d at 1044. immediately Id. Druhan appealed the to obtain review of the Druhan, Virginia brought interlocutory denying Druhan suit district court’s In order against Mutual Life American Insurance her motion to remand. Id. court, (''Mutual”) Company Woodard, ‍‌​‌​‌​‌​​​‌‌‌​‌​​​​‌​‌​‌‌‌‌‌‌‌‌‌​​‌​​‌‌‌​​​​​​​​‍in Alabama state brought In Woodard a class ac- alleging fraudulently Mutual had induced against Corporation tion STP and First purchase policy. her to a life insurance Dru court, Corporation Brands in Alabama state han, 166 F.3d at 1324. Mutual removed the granted and the state court a conditional class court, case federal on the basis that since certification. 170 F.3d at 1044. The defen- policy "purchased Druhan's in connec court, dants removed the case to federal package provided by tion with a benefits her Woodard moved the court to remand the case employer,” preempted by her suit was to the state court. Id. The district court Security Employee Retirement Income Act denied the motion and vacated the state ("ERISA”), §§ U.S.C. 29 1001-1461. Id. at court’s conditional class Id. certification. Druhan, "contending that her 1324-25. Woodard then moved the district court for a ERISA, preempted claims were not moved voluntary prejudice. dismissal without Id. the district court to remand the case to state objected The defendants to the court dismiss- court.” Id. at 1325. The district court de ing prejudice they the case without because nied the Id. motion. expenses litigat- had incurred considerable in ing the case and did not want to face another Druhan then moved the district court granted suit in state court. Id. The court complaint prejudice. dismiss her with motion, Woodard’s but dismissed the case moving papers, her stated that she she had prejudice. appealed with Id. Woodard no claims under ERISA and thus dismissal, intending appellate denying to obtain re- court’s order her motion to remand effectively remedy. interlocutory left her without a The view of the district court's order granted request, subsequently denying her his motion to remand case. Id.

1373 judgment pursu- the final appealing “judgment [and appeal attempted Woodard (or may § it There 1291]. ... because ant to U.S.C. appealable not was] [that not) plaintiff policy reasons for may good request at was obtained no ‘case or con- allowing appeal proceed therefore an this and there [was] Woodard, 170 That, however, to it.” troversy’ regard is a decision manner. Congress, at 1044. hands of F.3d that rests Constitution, which, along with the sets fact that ignore the Druhan asked us to jurisdic- court’s the boundaries dismissal, and that for the had asked she County v. Chambers tion. See Swint it, objected to had not Mutual American Comm’n, 35, 45-48, 115 514 U.S. S.Ct. appeal “beyond form and to look (1995). 1203, 1209-11, 131 L.Ed.2d 60 thereof,” to find that to the substance beyond lies those bound- appeal This to the dis although not parties, adverse aries. missal, as to the district were adverse the case to not to remand decision court’s omitted)(footnotes (citations Id. at 1326-27 Druhan, at state court. omitted). Thus, “beyond looking substance, that “in agreed [Dru 1326. We to the substance there- appeal form of the from a appeal not an appeal was] han’s of,” in Druhan was an what we saw from an but judgment, an final interlocutory which we lacked an order denying motion interlocutory [her] order at 1326. statutory authority hear. Id. “requested had Id. Druhan to remand.” only as a means of estab dismissal] [the B. finality [she] in the case such

lishing Fitel contends that Druhan/Wood immediately appeal the could cannot be jurisdictional holdings ard effec believe[d] that [she] order —an v. Procter & with States squared United then her case.” Id. We tively disposed of Co., 78 S.Ct. 356 U.S. Gamble as follows: explained (1958), v. and Greenhouse L.Ed.2d approach problem [Druhan’s] The (5th Cir.1977), Greco, a for 544 F.2d 1302 statutorily authorized. is that According to Fifth decision.9 mer Circuit clearly the circum- has stated Congress Fitel, proposi for two these cases stand may hear this court stances under which adverse, and tions: if a suffers interlocutory order. from an interlocutory ruling and then dispositive, (1994).... See 28 U.S.C. ap prejudice its case with dismisses denying remand is district court’s (1) Article presents an appeal peals, an from which among the not orders court controversy and this III case or right, and the appeal lies as matter appeal jurisdiction to hear the have would appeal by certi- did not seek an plaintiff 1291, be despite section under to 28 U.S.C. [pursuant fication interlocutory, rather than on an 1292(b)]. ing based at- plaintiff The instead § final, Fitel’s rea I disagree order. interlocutory order tempts soning. prejudice obtaining a dismissal with Hence, 1206, Woodard's Prichard, disregard Druhan and we F.2d 1209 v. 661 9. In Bonner banc), they contradict Cir.1981) (en holdings that (11th adopted to the extent we Greenhouse’s, in Cohen v. as our all decision binding precedent in Eleventh Circuit Of- 1069, (11th Inc., Depot, F.3d 1072 204 an- Fifth Circuit decisions of the former fice Cir.2000), 1, prior ... "[w]here dictates that prior 1981. Green- nouncеd October bound to fol- panel we are decisions conflict prior to that date and decided house was the oldest one.” and Woodard. low prior therefore Druhan 1374 way of getting review of the adverse

1. ruling might any sought be unseem- In v. Procter & Gamble United States ly conflict with the District Court avoid- 677, 678, 983, Company, 356 U.S. 78 S.Ct. proposed ed. When the Government (1958), 984, 2 L.Ed.2d 1077 the United obey, dismissal for failure to it had lost effect,10 States, voluntarily dismissed its in only on the seeking merits and was an against action civil antitrust Procter & expeditious review. This case is there- in- response in unfavorable Gamble Cayser, fore like Thomsen v. 243 U.S. directly appeal- and then terlocutory order 66, 353, [(1917)], 37 S.Ct. 61 L.Ed. 597 court’s decision to the Su- ed the district losing party got where the § the lower under 15 preme Court U.S.C. 29.11 Gamble, court to 679-80, complaint dismiss the rather 356 U.S. at Procter & 78 trial, than remand for a Supreme Court held new so that it S.Ct. at 985. get jurisdiction appeal. that it to hear the could review this Court. The had court, dismiss, explained: denying It the motion to plaintiffs said “The did not consent to a Appellees urge appeal may this them, that, judgment against only but maintained because dismissal there was to be judgment, such a complaint solicited the Govern- was should be final form instead of They ment. invoke the familiar rule inter- locutory, voluntarily they might who has so that come to dis- complaint may delay.” missed his not sue out a without further Phillips, writ of error. See Evans v. [17 680-81, Id. at (quoting 78 S.Ct. at 985-86 73, (1819)]; 4 L.Ed. 516 United U.S. Thomsen, 358). 83, at U.S. 37 S.Ct. at Babbitt, 767, v. 104 U.S. States Ct.Cl. [(1881)]. holding The Court’s in response The rule 26 L.Ed. has Procter & argument here. The Gamble’s application no Government at i.e., to, Government opposed production sought, had all times orders. consented judgment course have might It tested their and therefore waived its ways, validity example, by right in other for to challenge orders Gamble, civil contempt. appeal. the route of Yet it is on Procter & at U.S. why 985;12 understandable a more conventional 78 S.Ct. at see also Shores v. Gamble, the 10. In Procter & Government sued The version of 15 U.S.C. 29 then in effect 11. grand jury & after a stated Procter Gamble federal company violating every indict the brought refused to civil any action district any the criminal antitrust laws. court of the Procter & Gam United States under of said acts], ble, [antitrust Acts wherein During 356 U.S. at 78 S.Ct. at the United action, complainant, States is discovery from the in the civil Procter & Gam final of the district court will lie requested that ble the Government disclose Supreme to the Court. transcripts grand jury рroceedings. (1948). § 15 U.S.C. 29 request, Id. The Government resisted the the district court it to ordered disclose the tran 12. The Procter & Gamble Court cited Evans v. Government, scripts, and the "adamant in its 73, 73, Phillips, 4 Wheat. 17 4 U.S. L.Ed. 516 obey, refusal to filed a motion in the District (1818), Babbitt, and United States v. 104 U.S. requesting Court that those orders be amend 767, 768, (1881), supporting 26 L.Ed. 921 that, provide production ed to were not argument put by the forward Procter & Gam- made, the court would dismiss the 680, com ble. 356 U.S. at 78 S.Ct. at 985. Evans 678-79, plaint.” Id. at 78 S.Ct. at 984-85. only states that "[a] writ of error will not lie order, The district court entered the amended judgment on a of nonsuit.” 17 U.S. at 73. Babbitt, requested, as the Government though, and dismissed holding, has more detailed 680, the at explained case. Id. 78 S.Ct. at 985. in which the Court

1375 (11th jurisdiction have questions “when 760, and n. 7 Cir. Sklar, 764 F.2d 885 banc) sub (en prior the “eon- on in decisions si- 1989) passed that been (explaining impli lentio, does not Court has never considered sent-to-judgment doctrine [the] jurisdiction of the finally matter subject subsequent case the itself bound when cate on waiver that it rests but rather jurisdictional court” issue before brings [the the error). simply stating Lavine, 528, The Court 415 U.S. Hagans v. Court].” objec waived its had not the Government 5, 1372, 5, 1377 n. 39 533 n. 94 S.Ct. interlocutory the district court’s tion (1974). L.Ed.2d 577 judgment a final by requesting order —this does address Procter & Gamble also not “govern the noted that why the Court is Congress has holding Druhan not our production” the opposed at all times ment Druhan approach the used— authorized ‍‌​‌​‌​‌​​​‌‌‌​‌​​​​‌​‌​‌‌‌‌‌‌‌‌‌​​‌​​‌‌‌​​​​​​​​‍Thomsen, rejected where cited to and of the case for the obtaining the dismissal argument judgment” “consent the same dispositive a case in- appealing purpose Procter & Gamble. by Procter advanced of the Gov- terlocutory order. At the time 680-81, Gamble, S.Ct. at at 78 356 U.S. & statutory did appeal, law ernment’s the 82, Thomsen, 985-86; at 243 U.S. see jurisdic- the Court with provide Supreme argument (describing the at 357 S.Ct. interlocutory appeal of the tion to hear an the to dismiss motion support appellee’s wanted to chal- the Government order of the circuit judgment appeal “[t]he as: of the under section 15 of title 28 lenge; finally in the form court was entered Code, all that Government could U.S. and plaintiffs of the request at the adopted Court was a final bring Supreme to the consent, assigned errors and the by their Thus, Government’s judgment. request by such were waived by plaintiffs Supreme consent”). options obtaining Court re- interlocutory of the court’s view district Gamble, then, only with deals Procter & that the request to either dis- order were objection its waived whether appeal case and triсt court dismiss its by requesting a order dismissal, the dismissal of its case or suffer directly addresses never dismissal—it contempt as a sanction controversy we considered issue case sanction, described as option the Court that the Court Nor does fact Druhan. Gamble, 356 “unseemly.” Procter & U.S. appeal in Procter the Government’s heard contrast, Fitel, by 681, at at 78 S.Ct. our Article implicitly foreclose & Gamble requesting the district option had & Gamble in Druhan. Procter holding III interlocutory order at certify the court to lacked that the argued never Government 1292(b).13 order, final issue for under adversity to the requisite Druhan, (101 suggests that Dru- U.S. concurrence han's, Railroad v. Ketchum In Pacific apply when the inter holdings 932), do not we decided that when L.Ed. effect of dis consent, locutory at has the order issue no errors decree was rendered plaintiff’s and contends missing case here on would be considered striking expert its the district court's a con- law such which were in waived legal effectively mal witness dismissed opinion, with- case comes sent. In our Jones, Ga. v. practice claim. See Graves to the that rule. The consent ("[Ejxcept App. 361 S.E.2d error now in law a below was waiver (such expi palpable cases as the in clear judg- reason the complained of. For this limitation), expert testi of a statute of ration ment below must be affirmed. necessary parameters mony establish Babbitt, at 768. 104 U.S. conduct, signifi acceptable professional would constitute which cant deviation from argument based on Proc to its 13. In addition Fitel, stated Gamble, malpractice.”). The concurrence Judge citing Barkett's ter & 1376

2. contends that Greenhouse addresses the _ , question implicitly and it in answers Gamble, Like Procter & Greenhouse aff¡,.,,,atíVP question address the explicitly does not us, appeal presents before whether Greenhouse involved a class action seek- controversy. ing an III case or to alleged segregation Article and oth- “end[ ] prepared agree Raceway, plaintiff voluntarily I am not at this time to with dis- prejudice [majority’s missed his case with discussion] in footnote 7 re- after dis- summary trict court denied his motion for jecting outright our sister circuits’ views and, judgment doing, in so resolved an issue permitting appellate “voluntary review of a against plaintiff. Raceway, of law 613 grant- dismissal where such a dismissal was appellee Raceway, F.2d at 657. The in as in only expedite ed review of an order Gamble, challenged ju- Procter & the court's appellant's in which had effect dismissed appeal, relying risdiction to hear the on the complaint.’’ Borg Studstill v. Warner Leas- parties well-established rule that to a consent 1005, (11th Cir.1986) ing, 806 F.2d 1008 judgment right judg- waive the cases). (collecting unnecessary It is to con- Co., (citing ment. Id. Scholl v. Felmont Oil directly, permit- as the front this issue cases 697, (6th Cir.1964) (holding 327 F.2d 700 ting only if it such review do so is clear that judgment appellant’s consent to a waives the appellant has "lost on merits” and " ” objections judgment, support to that in of the ‘only 'expeditious an seeks’ review.’ appellee’s argument)). The Sixth Circuit in- Adhesives, 351, Laczay v. Ross 855 F.2d 355 terpreted Procter & Gamble to create an ex- (6th Cir.1988) (quoting United States v. rule, ception holding judg- to that that "the Co., 677, Procter & Gamble 356 U.S. 78 appealable ment below is a final [as order (1958)). S.Ct. 2 1077 L.Ed.2d The § appellant’s under 28 U.S.C. 1291] since so- district court’s denial of Druhan's motion to designed licitation of the formal dismissal was remand, however, have did not the effect of only expedite review of an order which had dismissing her action. Druhan still had the appellant’s in effect complaint.” dismissed ability to make her claim under ERISA. Adhesives, Similarly, Laczay Id. in v. Ross Druhan, F.3d at 166 1327. (6th Cir.1988), 855 F.2d 351 the Sixth Circuit quoted The concurrence our decision in again held that Procter & Gamble created an Studstill, dicta, quoted, which had exception parties to the rule that to a consent holding Raceway Properties Sixth Circuit's judgment any objections. Laczay, waive 855 (6th Cir.1980). Emprise Corp., v. 613 F.2d 656 ("The requirement F.2d at ap- basic Druhan, (distin See 166 F.3d at 1327 n. 7 pealability of a consent is that the guishing Studstill from cases in which the proposing soliciting one it shall have 'lost plaintiff voluntarily complaint dismisses his only seeking on the merits and expedi- [be] response interlocutory to an unfavorable or ") Gamble, (quoting tious review.' Procter & der). Raceway Supreme relied on the Court’s 985). 356 U.S. at 78 S.Ct. at Raceway, decision in Procter & Gamble. concurrence, then, Judge Barkett's rests on quoted F.2d at 657. The concurrence also inapposite cases—cases that deal Laczay Sixth Circuit’s decision in v. Ross provides support waiver—and no for Fitel’s Adhesives, (6th Cir.1988), suggestion allegedly case-dispositive that the Raceway which relied on both and Procter & nature of the district striking court's order Gamble. expert provides jurisdiction us with Article III concurrence, relying Raceway Moreover, appeal. logic hear its and, extension, Gamble, Procter & at least majority opinion Dmhan s forecloses Fitel’s implicitly argued that these cases stood for argument. I fail to see how the fact that an proposition interlocutory that if the order interlocutory effectively disposed order of a effectively plaintiff's dismissed the cause of claim could make a difference under the ra- action, controversy there would be a case or case, tionale set forth in Druhan. In this plain under Article III and we could hear the with, court is still faced in the form appeal pursuant tiff’s U.S.C. case, appeal, dismissing a final order Fitel's Procter & Gamble Fitel, does not stand for this requested by which was and in sub- II.B.1., proposition, supra stance, see Part nei from an Raceway. ther does which we statutory jurisdiction lack to hear. order, final not for in the for want of a moot- discriminatory practices racially er vacated Id. The court therefore Catholic ness.” in the Roman schools parochial dismissing court’s order the Alexandria, Green- the district Louisiana.” diocese appealable want of an case as moot for house, at The defendants F.2d 1303. church, under section 1291.14 Id. judgment held title final which parish the included “substantially parochial all-white to a that, arriving at It is this obvious Louisiana, Marksville, the bish- school” required court was not to disposition, the diocese, agen- and several federal op the question plain- of whether the answer the orders, interlocutory the In two cies. Id. appeal maintained an tiffs could have class to the limited district court interlocutory of the two obtained review the Marksville and dismissed residents of Fitel, orders, they, like first obtained had orders bishop, the but the against claims all of their claims with the dismissal of After judgment. Id. reduced to were not Fitel, the According to prejudice. rulings, Marks- made these the the court question, pre- this nonetheless answered At desegregated. were parish ville schools holding. Fitel sumably as alternative court to plaintiffs the asked the point, this appearing argument language its on bases moot, and, the de- as as the case dismiss to opinion in the antecedent the court’s court dis- objection, the had no fendants being the was dis- statement that The Id. at 1303-04. it as moot. missed judgment. for of a lan- missed want the dismissal appealed then plaintiffs fact relates to the that guage cites review obtaining appellate purpose dismissed the case as the district court the court interlocutory orders the two a response letter-motion the moot entered, class had limited the which had court, see id. at had sent to the plaintiffs against the bish- the claims and dismissed 1303-04, pre- explores whether promptly at 1304. The defendants op. Id. plaintiffs appealing from cluded to dismiss appeals the court of moved pre- had interlocutory orders the court two that the district ground appeal on stated, viously The court entered. moot con- of the case as dismissal court’s may that one not The doctrine and, such, as judgment a consent stituted does not judgment apply a from consent appealable. Id. was not “By us. consent- before situation entered, that is ing judgment to the that appeals agreed The court appeal from it. right his parish party waives the Marksville against claims however, may, urge moot, dis- He but held that the were church actually given.” 9 was not his consent dismissing case had court’s order trict Rather, Practice P 203.06. It Moore Federal litigation. terminated the Id. intend plaintiffs did not obvious ongoing was still because litigation judg- to consent to their letter-motion to final court had not reduced district them from the preclude dismiss- ment would judgment desire for which review the appellate the bish- against claims ing plaintiffs’ judgment that a request moreover, against triggered their plaintiffs’ claims op; the trial court entered. Nor could pending. agencies were still the federal It an intent. words, have such against entertained panel’s the ease Id. In the seeking plaintiffs were aware that dormant but agencies “w[as] the federal so, of Civil to Federal Rule Procedure the dis- suant doing the court instructed Greenhouse, judgment 54(b). either enter a final at 1305. trict court to pur- partial parties final all 1378

review the two orders that had nar- a judgment that was final as to all issues It rowed the case. would be inconsis- and parties appealable and thus under sec- obligation tent with the court’s under 1291; tion plaintiffs that the appealed had R. P. 23 for Civ. the court to F[ed]. the judgment; that the defendants had by non-appealable terminate the case a moved to appeal dismiss the on ground judgment dispose that would plaintiffs that the had “consented” to the relief, by claims for diocesan-wide raised judgment;16 that plaintiffs had re- plaintiffs non-Marksville and on behalf sponded by to the motion stating that their of a diocesan-wide class. “consent was not actually given”; and that Drawing part Id. at 1305. on of this lan- it court, was obvious that the trial in dis- opposition guage, Fitel’s brief to EBG’s charging responsibilities under Rule appeal motion to dismiss the asserts that could not have entertained the notion that appellant Even where an has affirma plaintiffs consenting were to the dis- (which tively requested dismissal is not missal of their case. The dicta with ends here), binding authority the case of this implication: this scenario, if faced with this Circuit has held that dismissal of the panel would have found that plain- improper is where is “[i]t obvious tiffs had not consented to the dismissal. plaintiffs that by did not intend their Second, bearing Greenhouse has no judgment letter-motion to consent to a our “case or controversy” holdings in Dru- preclude would them from ap han and Woodard. Since the Greenhouse pellate review the desire for which trig panel was not presented with a judg- final gered request their that a judgment be ment it was not necessary for the panel to Greco, entered.” Greenhouse v. 544 reach the issue of standing, and thus did (11th Cir.1974); F.2d 1305 [5th] not explicitly. do so If it reached the v. Armstrong see also Dorse World In issue, it did circuit, so sub silentio. dus., Inc., (11th Cir.1986) 798 F.2d 1372 a panel’s jurisdictional sub silentio finding (refusing appeal despite to dismiss fact in one case does not constitute binding that appellant had entered a stipula into precedent, “it is well-established circuit tion of judgment).[15] Similarly, it was law that we are not bound prior obvious the [district c]ourt and coun decision’s sub juris- silentio treatment of a sel for clearly EBG [Fitel] con question.” dictional Drug, Main Inc. v. sistently objected to the district court’s Healthcare, Inc., Aetna U.S. preclusion expert testimony and (11th Cir.2007) (quotation omit- consented, never [Fitel] or intended to ted). judgment consent to a pre that would appellate clude from [Fitel] review. Accordingly, I believe that prece- our dent in The Druhan and language Greenhouse Woodard effectively the brief quotes provides day Fitel no ends the support for for Fitel’s appeal. two Fitel First, reasons. the language dicta; should not pure permitted to receive immedi- ate, it deals a hypothetical scenario. It automatic appellate review seeking assumes that the district court had entered Instead, dismissal with prejudice. distinguished 15. We Armstrong Dorse v. World judgment. ‘By consent consenting to the Indus., Inc., (11th Cir.1986), 798 F.2d 1372 entered, that is waives his ” Druhan, Druhan. 166 F.3d at 1325 n. 4. right Greenhouse, from it.’ added). (emphasis at F.2d panel acknowledged Greenhouse "may doctrine that one from a 1292(b) Congress, enacting in in statutory used the mechanism section should have 1292(b), if it wanted to place, appeal in section could have authorized the of point review. It is to this appellate receive such an order without the district court’s I turn. (and that now certification appeals’s the court of acceptance appeal), provided III. appellant the demonstrated to the court of done, it is obvious When all is said and appeals effectively, that the order and ad- interlocutory effectively that an order that case, versely, disposed of its Congress but plaintiffs appealable forecloses the case is go chose not to that route. 1292(b) 1292(b). under section Section Instead, Congress required that the dis- interlocutory provides appeal for the of trict judge dispositive determine the effect that it the district court certifies of the order it has entered. This makes “may materially advance the ultimate ter- perfect judge sense. The district is in the litigation.” mination of the 28 U.S.C. 1292(b). position best to assess the situation at An order that ef- particular, efficiency hand —in the and cost fectively plaintiffs the case— terminates authorizing to effectiveness of the interlocu- attempting ap- like the order Fitel is tory peal obviously go certifying meets definition. forward.17 In — screening appeals, the in matter in the 17. The role of district court court of which will interlocutory appeals emphasized permit in the is its docket to be crowded with 1292(b). legislative history We piecemeal litigation. of section re or minor history (1958), counted this in McFarlin v. Conseco Rep. reprinted S. No. 85-2434 in Services., (11th Cir. Report 1958 U.S.C.C.A.N. 5255. The Senate 2004), stating itself states may permit ap- [W]hile it desirable 1292(b) The addition of was [section] peals any interlocutory from order in cer- prompted by proposal Congress from instances, tain the indiscriminate use of the Judicial Conference of the United States authority may delay such result in rather specifics proposal orig- Courts. The of that expedition than of cases in the district judges appoint- from a of inated committee Obviously, appeals courts. such should not by study ed the Chief Justice to the matter they solely be allowed if are filed the interlocutory appeals. The of committee’s purpose delay spurious or are based report approved by was the Judicial Confer- grounds. ap- In order to eliminate such Congress, where it ence and transmitted to way peals the bill such a that the is cast in reproduced reports in the of the House discretionary than a is rather matter Judiciary Senate Committees when and right. discretionary It is in first they favorably legislation. acted on the The judge with the .... instance district report Judicial Conference committee Report Id. at 5256-5257. The Senate also particularly persuasive regard is report appoint- included a a committee from provision, intent behind the because Con- Circuit, by Judge the Tenth ed the Chief gress report's proposed enacted the lan- by procedure in- which addressed which guage verbatim. terlocutory appeals should be taken. Id. at omitted). (citations Id. an inter- 5258. The committee recommended report The from the Judicial Conference locutory appeals procedure similar to that report was attached to the issued committee 1292(b). eventually adopted by Congress §in by Judiciary the Senate Committee on the and apparently thought Committee The Senate states report Tenth Circuit committee’s to be in- right appeal given by the amendato- and therefore included it in its re- requirement structive ry limited statute is both report port. The Tenth Circuit committee’s judge, of the certificate of the trial who is litigation will states familiar with the and not be tactics, necessary] provide procedural disposed dilatory [it to countenance is through resting which the desired and of final discretion screen order, carefully circumscribing opportunity to revisit the client’s case be- issue, stating judge plainly deciding day. fore whether to call it a If it telling appeals the court of entertain- that, appears light of the unsuccessful efficiency will enhance ing merit, appeal, the case lacks counsel sim- reaching judg- a final cost-effectiveness ply perhaps informs the on sum- court — appeals, case.18 The court of ment in the 12(b)(6) mary judgment, a Rule determina- case, to the is stranger a total ill-suited 41(a) (b)— setting, tion or under Rule in this task the first instance. to undertake that the cannot establish its claim. entertaining of interlocu- Adopting policy a majority objects approach by to this that could be certified under tory appeals 1292(b) noting that section certification 1292(b), not, may are encour- section but (“there “guaranteed” no means is lawyers to dismiss a claim that age some no prediction basis for the dissent’s bold notwithstanding might succeed the adverse 1292(b) that a section request likely would interlocutory ruling. By traveling the sec- granted”) have been and that Fitel could 1292(b) route rather than the route tion have been appellate denied review the taken, lawyer a can Fitel has avoid the risk judge certify district to claim, failed the order. dismissing thereby of such a and Indeed, possible. However, that is encountering malpractice a suit.19 If un- a deni- appeal, successful on counsel will have the al of suggest certification would that the may pass ally .... We believe that the cases advance the ultimate termination of the 1292(b). judge litigation.” certificate of the trial is essential both 28 U.S.C. Conse- 1292(b) recognition appropriate quently, requested of the had [for case a section interlocutory appeal] hearing striking expert, re- and to certification of the order jection applications merely assumption of calculated is a safe that the district court delay judgment. Only hearing the trial would have court finished the that it was fully already conducting can be informed of the nature of the and would have consid- sanctions, peculiarities remaining and the which make it ered case EBG's motions for motion, appropriate interlocutory sought review at the since EBG's fifth which desirability appeal complaint time of the must be de- prej- dismissal of Fitel’s entire with termined; udice, probably only per- might and he litigation, is have terminated the obviating any son able to forecast the further course of thus interlocutory need for an litigation any degree accuracy. appeal. remaining Had the court heard the and, availability likely given Immediate of counsel for infor- motions as seems the tenor prove great hearing, mal conference should advan- of the December dismissed tage judge isolating complaint, the trial appealed, the ex- Fitel's Fitel would have traordinary savings may ruling case in which valuable and it have turned out that a expected interlocutory could be to follow an immediate presents order Fitel now Requirement unnecessary. review. that the trial court would have been As the case now, court, certify appropriate appeal again the case as for given stands the district purpose providing hearing, may serves double tenor of the December 15 dis- appellate opin- complaint hearing court with the best informed miss Fitel’s after EBG’s value, motions, event, remaining ion that immediate review is of in which this case protects appellate against again. at once dockets will come before us once petitions inappropriate flood cases. appeals 19. Where a court of has reviewed an Id. at 5262. order in an taken from a provides example 18. This case solely excellent of dismissal entered at the following procedure plaintiff's request, how established one must ask whether the 1292(b) judicial efficiency appeals, section enhances court sidestepping section limitation, 1292(b)'s thus reduces transaction costs. In evalu- took the because 1292(b) ating plaintiff's whether to authorize a section may counsel have committed mal- appeal, 1292(b) practice failing the district court must consider if "an to seek a section may immediate from the order materi- certification. position in the best who is judge, district INDUSTRIES, TAKEDA CHEMICAL unfolding landscape of the the entire

to see LTD., and Pharmaceuticals Takeda either his case, not believe did America, Inc., Plaintiffs-Appel North of law as “controlling question involved lees, ground is substantial which there re- appellate or that opinion” difference of v. ulti- “materially advance would view INC., LABORATORIES, Mylan MYLAN litigation.” mate termination Pharmaceuticals, Inc., and UDL Labo imme- case, of whether the decision either ratories, Inc., Defendants-Appellants, is appropriate review appellate diate judge, not by a district best made litigants. the individual Genpharm, Pty., Alphapharm Ltd. and Inc., Defendants-Appellants. my rejects majority Additionally, 2007-1269, 2007-1270. Nos. the section reasoning by arguing 1292(b) upon litigants “foists route Appeals, United States Court position” an untenable where counsel Circuit. Federal candidly tell the “attorney dare 8, 2008. Dec. I fail to case-dispositive.” is ruling that its 1292(b) certifi- Rehearing section Banc Denied Jan. how En requesting see places cation of an In- vexing ethical dilemma.

attorney 1292(b) certifi-

deed, section by requesting informing

cation, attorney candidly “ma- at hand will the order

the court that termination the ultimate

terially advance di- There is no ethical litigation.” ‍‌​‌​‌​‌​​​‌‌‌​‌​​​​‌​‌​‌‌‌‌‌‌‌‌‌​​‌​​‌‌‌​​​​​​​​‍attor- attorney faces that an

lemma his candidly informs the court about

ney diligently pursues his positions and

client’s statutory frame- through the goals

client’s

work. respectfully I reasons that

It is for these

DISSENT.

Case Details

Case Name: OFS FITEL, LLC v. Epstein, Becker and Green, PC

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Nov 28, 2008

Citation: 549 F.3d 1344

Docket Number: 07-10200

Court Abbreviation: 11th Cir.