§ 3914.18Finality—Orders Prior to Trial—Party Joinder, 15B Fed. Prac. & Proc. Juris....
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`15B Fed. Prac. & Proc. Juris. § 3914.18 (2d ed.)
`
`Federal Practice & Procedure | April 2017 Update
`Jurisdiction And Related Matters
`The Late Charles Alan Wright a306 , Arthur R. Miller a307 , Edward H. Cooper a308 , Vikram David Amar a309 , Richard D.
`Freer a310 , Helen Hershkoff a311 , Joan E. Steinman a312 , Catherine T. Struve a313
`
`Jurisdiction and Related Matters
`Chapter 9. Jurisdiction Of The Courts Of Appeals
`Edward H. Cooper a435
`
`B. Final Judgment Rule
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`§ 3914.18 Finality—Orders Prior to Trial—Party Joinder
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`Link to Monthly Supplemental Service
`Few problems are encountered in determining the appealability of orders dealing with party joinder. Ordinarily orders
`granting or denying joinder or substitution are not final. Orders denying intervention have led to some formal difficulty
`in explaining the nature of the action taken by the court of appeals, but the result is clear—denial of intervention of right
`is reviewed, and denial of permissive intervention is reviewed for abuse of discretion. These matters are discussed in turn
`below, along with a brief note on decisions with respect to interpleader.
`
`Whatever the joinder device may be, orders granting 1 or denying 2 joinder are not final. The same rule follows as to
`orders having similar effects. Thus appeals have been dismissed from orders reinstating a third-party claim, 3 realigning a
`plaintiff as defendant, 4 vacating an order allowing joinder, 5 or refusing to dismiss newly joined defendants. 6 Dismissal
`of the action for nonjoinder, on the other hand, is final. 7 Once a party has been joined, dismissal of the action as to that
`party can be made final under Civil Rule 54(b). 8 One court has taken the apparently reasonable step of accepting an
`appeal following entry of a Rule 54(b) judgment on an order denying joinder; 9 since the result is the same as allowing
`joinder and then dismissing, this is a sensible use of Rule 54(b). Some difficulty may be encountered, however, in the
`language of the rule, which refers to actions involving multiple “parties” and to orders entering judgment as to one or
`more parties. Review also may be possible as part of the proper scope of an appeal from an interlocutory injunction
`order, 10 or upon certification for appeal under 28 U.S.C.A. § 1292(b). 11 In extreme circumstances, mandamus also
`may be available. 12
`
`Orders with respect to substitution of parties fare the same as orders with respect to joinder. Ordinarily orders granting 13
`or denying 14 substitution are not final. It is possible, however, that finality may be found on some expanded principle
`such as collateral order doctrine or the special rules of finality that apply in bankruptcy proceedings. 15
`
`Orders granting intervention, or granting intervention but limiting the intervenor's role in the action, are treated in the
`same way as other orders with respect to party joinder. Although intervention may impose many burdens on the original
`parties, altering the strategic posture of the case, increasing expense, and aggravating delay, the same is true of other
`orders granting or requiring joinder. An order granting intervention is not final. 16 Orders granting limited intervention
`may seem hybrid, since in part they deny unlimited intervention. The Supreme Court, however, has settled the rule that
`an order granting limited intervention is not final. 17 It has been held that review cannot be had even on cross-appeal, 18
`
` © 2018 Thomson Reuters. No claim to original U.S. Government Works.
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`MYLAN - EXHIBIT 1170
`Mylan Pharmaceuticals Inc. et al. v. Allergan, Inc.
`IPR2016-01127, -01128, -01129, -01130, -01131, -01132
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`§ 3914.18Finality—Orders Prior to Trial—Party Joinder, 15B Fed. Prac. & Proc. Juris....
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`but this policy should not be followed without exception. If the circumstances of the appeal make it appropriate to review
`the limits placed on the intervenor, the rules that prohibit an independent appeal should not stand in the way. 19 Appeal
`also has been denied if the district court simultaneously denies intervention and grants limited intervention, in keeping
`with the functional view that the result is the same as any other grant of limited intervention. 20 The theory of all these
`cases is that review on appeal from the final judgment is sufficient. 21 Despite the manifest inability of final judgment
`review to correct the many costs that may follow inappropriate grants or limits of intervention, this conclusion is in
`keeping with the basic choices made in adopting the final judgment rule. 22
`
`Denials of intervention have long been treated differently than other orders with respect to party joinder. 23 No further
`orders will be entered with respect to the would-be intervenor. To insist that review be delayed until entry of a final
`judgment concluding the entire action would work to the potential disadvantage of the intervenor and the parties as
`well, risking duplication of otherwise faultless proceedings to enable participation by the intervenor. Allowing immediate
`appeal, moreover, need not interfere with the power of the trial court to continue proceedings with the original parties.
`Recognizing these concerns, courts in fact have provided immediate review. The traditional means of providing review,
`however, was awkward. Although some courts have come to the view that final judgment appeal is available from orders
`denying either intervention as a matter of right or permissive intervention, others continue to adhere to one or another of
`the older views. These matters have been discussed at length in the volume dealing with intervention, 24 and the following
`summary is shortened accordingly.
`
`Among the contemporary rules on appeal from a denial of intervention, the oldest is the “anomalous” rule recognizing
`provisional jurisdiction. Under this rule the court of appeals has jurisdiction to reverse if the trial court erroneously
`denied a petition to intervene as of right, or if denial of permissive intervention was a clear abuse of discretion. If there was
`not a right to intervene nor any clear abuse of discretion in denying permissive intervention, the appeal was dismissed. 25
`The anomalous rule, if enforced according to its express terms, has the same effects as a rule permitting appeal. Dismissal
`of the appeal apparently has the same effect as affirmance; there is no indication that the dismissal would be denied
`law-of-the-case effect in subsequent proceedings. The only objection to this rule arises from its vauntedly anomalous
`character. A court that in fact is doing everything it would do if it admitted to having jurisdiction should acknowledge
`that it is exercising jurisdiction. Not only is it more seemly to speak directly; accurate characterization may have some
`impact on such incidental questions as the appeal time question noted in the next paragraph.
`
`Recognizing the odd qualities of provisional jurisdiction, many courts have moved to an intermediate position. Appeal
`can be taken from denial of intervention as of right, whether or not the district court was right. Appeal can be taken from
`denial of permissive intervention, however, only if there was a clear abuse of discretion. 26 It would be logical enough to
`soften this rule further by asserting pendent jurisdiction over the permissive intervention issue on an appeal claiming a
`right to intervene, 27 although the only effect would be to change the label applied to the decision. A potentially awkward
`consequence of this intermediate position, however, may arise from the rules governing appeal time. Failure to appeal
`denial of intervention upon entry of the order may forfeit the right to review by joining with any party who appeals
`the final judgment, as should be. 28 It is possible, however, to conclude that the right to secure review of a denial of
`permissive intervention is not forfeited because appeal time did not start to run with the order denying intervention. 29
`There is no reason to distinguish between the times for appeal; if anything, it makes more sense to force immediate review
`of a denial of merely permissive intervention since the interests involved ordinarily are not as pressing as the interests
`that would support intervention as a matter of right. In any event, the intermediate position simply resolves one half
`of the provisional jurisdiction oddity; permissive intervention appeals remain subject to dismissal if reversal is—almost
`inevitably—denied.
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`§ 3914.18Finality—Orders Prior to Trial—Party Joinder, 15B Fed. Prac. & Proc. Juris....
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`Along with the intermediate position are other cases that have decided intervention appeals, either in circumstances
`that may have presented special reasons for permitting appeal 30 or without bothering to discuss the question of
`jurisdiction. 31 The Seventh Circuit has clearly adopted the view that all denials of intervention are appealable, and may
`be joined by others. 32 As suggested above this view is the most sensible. The only persuasive basis for challenge lies in
`doubt whether denial of permissive intervention should be reviewed at all. If review is to be had, it is better to allow—
`and indeed to require 32.5 —immediate appeal. Reversal is so unlikely, however, that it might be better to deny any basis
`of appellate jurisdiction, provisional or otherwise. 33
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`A district court's failure to reach final disposition of a motion to intervene does not support an appeal, 33.5 unless perhaps
`there is such delay in ruling as to be an effective denial of any meaningful participation.
`
`A few incidental questions remain in discussing intervention appeals. If intervention is allowed and the intervenor is
`thereafter dismissed, appeal is available only if final judgment is entered under Civil Rule 54(b); 34 the intervenor, once
`allowed to become a party, is treated in the same way as any other party. A bogus attempt to intervene made by a
`party cannot become an occasion for permitting appeal from an interlocutory order. 35 If intervention is sought after
`final judgment, on the other hand, a grant or denial clearly is final, on the same principles that make many other post-
`judgment orders final. 36
`
`Interpleader procedure is designed to bring multiple claims and multiple parties before the court. The general rules
`governing interpleader appeals have been set out in an earlier volume 37 and need not be repeated at length here. An
`order that dismisses an original action in interpleader or that disposes of all claims among all parties is final. 38 Beyond
`that point, the principles of Civil Rule 54(b) control most matters; disposition of fewer than all the claims as among all
`the parties is final only upon express entry of judgment in compliance with Rule 54(b), 39 unless proceedings have been
`so far severed as to create separate actions. 40 Thus an order that merely denies interpleader by way of counterclaim or
`cross-claim in a pending action is not final, in keeping with the general rules that deny appeal from other orders governing
`the addition of claims or parties. So too a decision granting interpleader and discharging the stakeholder is not final.
`And an order refusing to turn over part of the interpleader stake to one of the contending parties is not final. 41 Because
`interpleader frequently is accompanied by an injunction against related actions, however, review of the propriety of the
`interpleader itself often is accomplished by interlocutory appeal from the injunction. 42
`
`Class actions in many ways seem close to the ultimate party joinder device. Because so many questions of appealability
`arise in the course of administering class actions, they have been set for separate treatment in the next subsection.
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`Westlaw. © 2017 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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`Footnotes
`a306
`a307
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`a308
`a309
`a310
`a311
`
`Charles Alan Wright Chair in Federal Courts, The University of Texas.
`University Professor, New York University. Formerly Bruce Bromley Professor of Law,
`Harvard University.
`Thomas M. Cooley Professor of Law, University of Michigan.
`Dean and Iwan Foundation Professor of Law, University of Illinois College of Law.
`Robert Howell Hall Professor of Law, Emory University.
`Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties, New
`York University.
`
` © 2018 Thomson Reuters. No claim to original U.S. Government Works.
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`a312
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`a313
`a435
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`2
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`Distinguished Professor of Law, Chicago–Kent College of Law, Illinois Institute of
`Technology.
`Professor of Law, University of Pennsylvania.
`Thomas M. Cooley Professor of Law, University of Michigan.
`Joinder granted
`Orders allowing the addition of new parties plaintiff were interlocutory, and could be reviewed
`on appeal from an interlocutory injunction order only to determine whether the new parties
`might be entitled to any equitable relief. Deckert v. Independence Shares Corp., 1940, 61 S.Ct.
`229, 234 & n. 4, 311 U.S. 282, 290–291 & n. 4, 85 L.Ed. 189.
`In an effort to defeat jurisdiction under the Securities Litigation Uniform Standards Act, the
`plaintiff filed a fourth amended complaint that substituted 46 named individual plaintiffs for
`a putative class and also added two defendants. The district court granted leave to amend
`and remanded to state court. The appeal was dismissed for want of a final judgment. The
`substitutions could be effectively reviewed in the state courts on remand. Ordinarily orders
`granting or denying joinder or substitution are not final. W.R. Huff Asset Management Co.,
`L.L.C. v. Kohlberg, Kravis, Roberts & Co., L.P., 566 F.3d 979, 985 n. 7 (11th Cir. 2009),
`quoting Wright, Miller & Cooper.
`Grant of leave to amend the complaint in a diversity action to add a state agency as defendant
`was an unreviewable interlocutory order. Review could not be achieved by relying on the fact
`that the court erroneously concluded that joinder defeated its jurisdiction and remanded the
`action to state court; the remand order was shielded from review by 28 U.S.C.A. § 1447(d).
`Tillman v. CSX Transp., Inc., C.A.5th, 1991, 929 F.2d 1023, 1028–1029, certiorari denied 112
`S.Ct. 176, 502 U.S. 859, 116 L.Ed.2d 139.
`The portion of the district court order that added a special school district to an ongoing school
`desegregation suit was not appealable. Liddell v. Board of Educ. of St. Louis, C.A.8th, 1981,
`693 F.2d 721, 723 n. 6. See also Liddell v. Board of Educ., C.A.8th, 1982, 677 F.2d 626, 639,
`certiorari denied 103 S.Ct. 172, 459 U.S. 877, 74 L.Ed.2d 142.
`An order joining a new party as an added defendant was interlocutory, and could not be
`appealed under the collateral order doctrine since it could be fully reviewed on appeal from
`the final judgment. Prop-Jets, Inc. v. Chandler, C.A.10th, 1978, 575 F.2d 1322, 1325, citing
`Wright & Miller.
`An order directing the joinder of additional parties defendant was not final. Metalock Repair
`Serv. v. Harman, C.A.6th, 1954, 216 F.2d 611.
`Denying joinder
`Denial of a motion to dismiss for failure to join a party required under Civil Rule 19 is not
`final, nor can collateral-order reasoning make it final. Lack of jurisdiction to review the joinder
`ruling meant that the argument that tribal immunity would defeat joinder also could not be
`reviewed. Alto v. Black, 738 F.3d 1111, 1130-1131 (9th Cir. 2013).
`Not even collateral-order theory supports appeal from an order refusing to order joinder of an
`added defendant under Rule 19. The question can be decided on appeal from a final judgment.
`Rule 19 joinder is not a question of subject-matter jurisdiction. Nor could the joinder ruling
`be reviewed on this appeal from an interlocutory injunction and from denial of the defendant's
`official-immunity argument. Pendent appeal jurisdiction was inappropriate because the Rule
`19 issues were not inextricably intertwined with the injunction or immunity issues. Crowe &
`Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1147-1149 (10th Cir. 2011).
`An order denying leave to amend the complaint to add new plaintiffs was not final. No attempt
`had been made to enter judgment under Rule 54(b), nor could a Rule 54(b) judgment be entered
`on such a nonfinal order. Collateral order doctrine did not support appeal, since review would
`be possible on appeal from a final judgment. Kahn v. Chase Manhattan Bank, N.A., C.A.2d,
`1996, 91 F.3d 385.
`An order denying the request of the plaintiff in an adversary proceeding incident to a
`bankruptcy proceeding to join an additional plaintiff was not final. The order could not be
`appealed on a theory of practical finality, death knell effects, or collateral order doctrine;
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`it could be reviewed on appeal from the final judgment. “Orders permitting the addition of
`plaintiffs are clearly interlocutory. … Similarly, denial of leave to amend pleadings is ordinarily
`not final.” In re Kelly, C.A.3d, 1989, 876 F.2d 14, 15.
`Denial of the defendants' motion to amend their pleadings to assert a counterclaim and implead
`third-party defendants could not be appealed. Collateral order reasoning could not be relied
`upon to support appeal; although the defendants asserted a fear that trial of the complaint to
`the judge would establish preclusion barring relitigation of common issues to a jury should the
`denial of amendment be reversed on appeal, that fear was not sufficient. Mandamus issued to
`require that the amendment be permitted, however, on finding that the procedures adopted by
`the district court had improperly prevented the defendants from filing their motion for leave
`to amend. Richardson Greenshields Securities, Inc. v. Lau, C.A.2d, 1987, 825 F.2d 647.
`Appeal cannot be taken from an order that denies a motion to amend the complaint to join a
`new party defendant. Demelo v. Woolsey Marine Indus., C.A.5th, 1982, 677 F.2d 1030, 1035
`n. 12.
`An order denying leave to file a third-party complaint was not appealable as a final decision,
`and could not be made so by reliance on collateral order reasoning. Minnesota v. Pickands
`Mather & Co., C.A.8th, 1980, 636 F.2d 251.
`Denial of a motion to join a new party was interlocutory, not final. A notice of appeal addressed
`to that order was premature, and was not resurrected by the later entry of final judgment when
`no subsequent notice of appeal was filed. U.S. v. Taylor, C.A.5th, 1980, 632 F.2d 530.
`Denial of a motion to amend the complaint to advance additional claims, and join new
`defendants, was not appealable. The right sought to be asserted was not separable or collateral
`so as to fall within the collateral order exception to ordinary finality requirements. Wells v.
`South Main Bank, C.A.5th, 1976, 532 F.2d 1005, rehearing denied C.A.3d, 1976, 540 F.2d 1087.
`Denial of motions by a plaintiff to add a new defendant, and to amend the complaint to
`substitute the new defendant's name for the “First Doe” defendant named in the complaint was
`interlocutory and the appeal must be dismissed. Hartford Fire Ins. Co. v. Herrald, C.A.9th,
`1970, 434 F.2d 638.
`An order denying a motion by the defendant to bring in an added defendant, pursuant to a
`state procedure analogous to the impleader procedure of present Civil Rule 14, was not final.
`Van Cott v. Marion De Vries, Inc., C.C.A.2d, 1930, 37 F.2d 48.
`Final judgment review
`The order denying the motion to join an additional defendant to assert successor liability was
`interlocutory. “Ordinarily, such an order does not support appellate jurisdiction.” But the
`order was reviewable on an appeal taken after settlement and entry of a final judgment against
`the original defendant. Brzozowski v. Correctional Physician Servs., Inc., C.A.3d, 2004, 360
`F.3d 173, 176–177, citing Wright, Miller & Cooper.
`Reinstate 3d-party claim
`Collateral order appeal would not be allowed from an order reinstating previously dismissed
`third-party claims. “The Supreme Court has indicated an intention to cut back on the litigation
`explosion by restricting” collateral order appeals. In re U.S., C.A.2d, 1984, 733 F.2d 10, 14.
`Realign plaintiff
`An order realigning a plaintiff as a defendant could not be appealed as a collateral order, since
`it could be revised at any stage. Moreover, it was not separate from the merits of the action.
`School Dist. of Kansas City v. Missouri, C.A.8th, 1979, 592 F.2d 493, 496.
`Vacate joinder order
`An order vacating a prior order that permitted joinder of a new defendant was interlocutory
`and nonappealable. Melancon v. Texaco, Inc., C.A.5th, 1981, 659 F.2d 551, 553, citing Wright,
`Miller & Cooper.
`Denying dismissal
`Following an order that granted leave to join additional parties defendant, the new defendants
`moved to have the case against them dismissed. On appeal from denial of the motion to dismiss,
`the court noted that “[w]hile this may not be a final order, we consider the question for the
`guidance of the District Judge on remand. The denial of a motion to dismiss parties is not a final
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`order.” It then instructed the district court on the questions raised by the motion to dismiss.
`Sykes v. Krieger, C.A.6th, 1976, 551 F.2d 689, 692.
`Dismissal of action
`Dismissal without prejudice for failure to join an indispensable party plaintiff whose joinder
`would destroy diversity jurisdiction was appealable. “[T]he effect of the dismissal … was to
`oust from federal court a suit over which the court had subject matter jurisdiction.” Delgado
`v. Plaza Las Americas, Inc., C.A.1st, 1998, 139 F.3d 1, 2–3.
`On appeal from an order dismissing a case for refusal to join an absent person, the court
`affirmed but invited the trial court on remand to allow one more opportunity to join the
`absentee. Kamhi v. Cohen, C.A.2d, 1975, 512 F.2d 1051, 1056. The effect of this procedure is
`not the same as permitting interlocutory appeal from the joinder order, since the recalcitrant
`party cannot count on such appellate dispensation if the joinder order is affirmed.
`Over-joinder
`The district court dismissed an opt-in class-action under the Fair Labor Standards Act,
`finding that employees in more than 300 stores operated by the defendant were not so far
`"similarly situated" as to support a class action. Some 800 employees then brought this action
`as individuals, pursuing the same claims. The district court dismissed the action, finding the
`claims were too dissimilar to go forward in a single action. It stated that the dismissal was a final
`order resolving all claims in the action, but noted an action joining employees in a single store
`would be proper. The dismissal was a final judgment. Ordinarily an order granting or denying
`joinder is not final. But the court violated Civil Rule 21, which directs that misjoinder should
`be corrected by dismissing only the misjoined parties, not all parties. That error supported
`appealability. Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 520 (5th Cir. 2010),
`quoting Wright, Miller & Cooper.
`Rule 54(b)
`See § 3914.7.
`See also
`A Rule 54(b) result was reached, apparently without compliance with Rule 54(b), in Coughlin
`v. Rogers, C.A.9th, 1997, 130 F.3d 1348, 1349. Forty-nine plaintiffs joined in an action claiming
`that the INS had unreasonably delayed action on their petitions for various forms of relief.
`The district court concluded that their claims did not arise out of a common transaction or
`occurrence, and did not present any common issue of law or fact. It dismissed 48 or the 49
`plaintiffs. The court of appeals stated simply that it had jurisdiction of the appeal under § 1291.
`Entry of a final judgment as to the 48 dismissed plaintiffs could easily have been justified under
`Rule 54(b), and the court could have stayed proceedings while the parties applied to the district
`court for entry of the judgment. Disposition of the appeal without regard to such niceties seems
`understandable.
`Rule 54(b) with nonjoinder
`An order that denied leave to amend the complaint to add a new party defendant was
`appealable because it had been entered as a final judgment under Civil Rule 54(b) and because
`the running of the statute of limitations meant that if the new defendant were not joined
`in the present action the claim against it would be effectively terminated. The case was like
`one in which dismissal of a complaint without prejudice was held final because the statute of
`limitations would bar a new action. Lockett v. General Fin. Loan Co., C.A.5th, 1980, 623 F.2d
`1128, 1129–1130.
`Injunction appeal
`An order allowing joinder of new parties plaintiff was interlocutory, even against the contention
`that their claims were barred by the statute of limitations, but on appeal from an interlocutory
`injunction order the court would indicate some of the limitations questions that must be
`determined in order to establish the proper scope of interlocutory relief. Pennsylvania Co. for
`Ins. v. Deckert, C.C.A.3d, 1941, 123 F.2d 979, 984–985.
`The proper scope of appeals from interlocutory injunction orders is explored in vol. 16, § 3921.
`§ 1292(b) appeal
`See vol. 16, § 3931.
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`Mandamus review
`See Richardson Greenshields Secs., Inc. v. Lau, C.A.2d, 1987, 825 F.2d 647, described in note
`2 above.
`Granting substitution
`An order granting substitution of the United States as defendant in place of a federal employee,
`on certification by the United States that the employee was acting in the course of employment,
`is not final. Collateral-order doctrine does not support appeal. The appeal in this case, however,
`was followed within three weeks by an order that dismissed the sole remaining claim in the
`action. The appeal was “slightly premature,” but was retained because dismissal “would be
`overly mechanistic and a waste of judicial resources.” Maron v. U.S., C.A.4th, 1997, 126 F.3d
`317, 321 n. 4.
`In re Sylvania Elec. Prods., Inc., C.A.1st, 1955, 220 F.2d 423.
`Hazeltine Corp. v. Kirkpatrick, C.C.A.3d, 1948, 165 F.2d 683, certiorari denied 68 S.Ct. 1084,
`334 U.S. 819, 92 L.Ed. 1749, rehearing denied 1948, 68 S.Ct. 1528, 334 U.S. 862, 92 L.Ed.2d
`1782.
`Other cases dealing with substitution of the United States are discussed in vol. 15A, § 3914.10,
`new text at note 75.5.
`Guardian ad litem
`The secretary and president of the employer, which was the sponsor and named fiduciary
`of an ERISA profit-sharing plan, brought an action on behalf of the plan against the plan's
`trustee for mismanagement of fund assets. The trustee impleaded the secretary and president in
`their individual capacities as plan administrators. The district court disqualified the attorneys
`who had originally represented both the employer and the two officers and appointed a
`guardian ad litem to represent the plan solely for purposes of the litigation. Collateral-order
`doctrine did not support appeal from the order. An order disqualifying counsel clearly does
`not qualify for collateral-order appeal. Appointment of a guardian ad litem also fails the
`test. The order was “enmeshed with the factual and legal issues comprising the third-party
`claim against the Plan administrators alleging breach of fiduciary duties ….” The importance
`of an order for collateral-order appeal purposes, moreover, cannot be measured ad hoc for
`each case. Appealability as a collateral order must depend on the generic appealability or
`nonappealability of a category of orders in all cases. Finally, without determining what is the
`appropriate approach to review on appeal from a final judgment, the appointment could be
`reviewed then. In re Pressman-Gutman Co., C.A.3d, 2006, 459 F.3d 383, 395–398.
`Denying substitution
`An order denying a motion to substitute a new party as a defendant named in a previously
`issued permanent injunction could be reviewed on appeal from the final judgment terminating
`the contempt proceedings in which the motion was made. Panther Pumps & Equip. Co. v.
`Hydrocraft, Inc., C.A.7th, 1977, 566 F.2d 8, 22 n. 9, certiorari denied 98 S.Ct. 1887, 435 U.S.
`1013, 56 L.Ed.2d 395.
`Special finality
`The appeal from denial of the motion to substitute the widow-administratrix as plaintiff for the
`deceased plaintiff was dismissed because the notice of appeal named only the deceased plaintiff,
`failing to satisfy the Appellate Rule 3 requirement that the notice name the appellant. The court
`observed, however, that appellate review could have been secured by a proper notice because
`the district court had dismissed the action. It added that even if the action remained pending,
`denial of substitution can be appealed under collateral-order theory. Substitution is separate
`from the merits, denial conclusively determines the request to prosecute the action, and denial
`“results in a total bar to recovery because there is no party able to carry on the action.” Billino
`v. Citibank, N.A., C.A.2d, 1997, 123 F.3d 723, 727. (It seems likely that the reference to “no
`party able to carry on the action” means that no party remains to pursue a particular claim,
`but the meaning is not entirely clear.)
`After a grain warehouse lessee paid state court judgments in favor of farmers who had lost
`their grain to misdeeds by the owner, the lessee petitioned to be substituted for the farmers as
`a claimant in the operator's bankruptcy proceedings. Denial of the motion to substitute was
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`appealable. It presented issues wholly separate from the other matters in the proceedings, and
`denial of present appeal would place beyond any effective review the rights of the lessee. In re
`Covington Grain Co., C.A.5th, 1981, 638 F.2d 1357, 1359–1360, followed in In re Covington
`Grain Co., C.A.5th, 1981, 638 F.2d 1362, 1364.
`Intervention granted
`The plaintiffs appealed denial of a preliminary injunction against enforcing parts of an
`ordinance adopted by initiative. The county stated that it would enforce the ordinance unless
`enjoined, but took a position of neutrality on the merits, and did not appear on the appeal.
`Supporters of the initiative who had been granted leave to intervene appeared on the appeal.
`The court allowed them to proceed but refused to determine whether the district court erred in
`granting intervention, relying on the proposition that an order granting intervention is not a
`final order. It is surprising that it did not consider whether the scope of an appeal from denial
`of a preliminary injunction should extend to determining the propriety of participation by the
`only participants opposing the appeal. Vivid Entertainment, LLC v. Fielding, 774 F.3d 566,
`573 (9th Cir. 2014).
`After granting the plaintiff's motion for summary judgment the district court allowed a
`nonparty to intervene solely for purposes of appealing the judgment. The court first ruled
`that the judgment was not final and dismissed the intervenor's appeal. Then it dismissed the
`plaintiff's appeal from the order permitting intervention because the order was interlocutory,
`not final. Alsea Valley Alliance v. Department of Commerce, C.A.9th, 2004, 358 F.3d 1181,
`1187.
`On appeal and affirmance of an order staying proceedings in a federal class action in deference
`to an earlier-instituted state court action on behalf of a broader class, an order granting
`intervention to the representative plaintiff in the state action would not be reviewed. “[O]rders
`granting intervention are not final for purposes of appeal.” Trent v. Dial Medical, C.A.3d,
`1994, 33 F.3d 217, 225–226.
`An order granting the government intervention in a civil action for the purpose of seeking a
`stay of discovery pending completion of a criminal investigation was not final. Review could
`be had on appeal from the final judgment. SEC v. Chestman, C.A.2d, 1988, 861 F.2d 49, 50.
`(The prospect that any meaningful relief could be given on appeal from a final judgment surely
`is dim at best.)
`An order granting intervention was not suitable for collateral order appeal, since it could
`be reviewed effectively on appeal from the final judgment. Brown v. New Orleans Clerks &
`Checkers Local 1497, C.A.5th, 1979, 590 F.2d 161, 164