John Bethel v. McAllister Brothers, Inc. Frank J. Huesser Thomas Bethel, as Administrator of the Estate of John Bethel

NYGAARD, Circuit Judge,

concurring.

The district court, after earlier granting defendants’ motion for relief from judgment and ordering a new trial, dismissed the case for failure to prosecute when appellant, who first stated unequivocally that he would present his case, later recanted and expressly refused to proceed to trial. The appellant does not challenge the propriety of the district court’s dismissal. Indeed, the majority and I agree that there was nothing improper *386 about it. Without challenging the propriety of that dismissal, however, appellant asks that we review the underlying interlocutory orders granting a new trial. I would not do so. Unless we can vacate or reverse the dismissal order, the case is over, because that dismissal lies athwart the way to review all other underlying, interlocutory orders.

Before now, we would not review underlying interlocutory orders if the district court did not abuse its discretion by entering judgment for failure to prosecute. See Sullivan v. Pacific Indent. Co., 566 F.2d 444, 445 (3d Cir.1977); Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir.1974); see also Spain v. Gallegos, 26 F.3d 439 (3d Cir.1994). These cases establish that a party who tries to obtain appellate review of otherwise interlocutory orders by refusing to proceed to trial engages in an impermissible strategy.

We established this narrow scope of review for three reasons: first, there is a presumption of propriety for court orders — they are enforceable unless stayed or reversed; second, to avoid piecemeal litigation — as we recognize, the results of the new trial may well • cure complaints about the interlocutory orders; and third, to vindicate and encourage proper respect for the district court’s authority — we simply cannot allow counsel to flout orders of the district courts. The majority cannot overturn our precedent. Instead, it creates an exception to our holdings in Spain, Sullivan, and Marshall , which is both unnecessary and imprudent. I would not do so. I would affirm the district court’s dismissal, and hence not reach the propriety of the interlocutory orders.

I.

Appellant incorrectly theorizes that a decision granting a new trial is always reviewable after any subsequent judgment. In Blancha v. Raymark Indus., 972 F.2d 507 (3d Cir.1992), we held that:

[wjhile an order granting a new trial is purely interlocutory and thus is not an appealable final order within the meaning of section 1291, such an order is reviewable after a final order is entered following retrial.

Id. at 511-512 (emphasis added).

If, however, there is no retrial because the district court dismisses the case in response to plaintiff’s clear and unequivocal refusal to proceed with a second trial, and especially where, as here, the appellant does not challenge the dismissal, then the earlier interlocutory order is simply not reviewable. This result is both fair and prudent:

Where the dismissal, was a sanction, as for failure to prosecute, the case is distinguishable from those cases where the case was properly litigated to a conclusion, and the unsuccessful party then seeks on appeal to challenge the interlocutory order granting a new trial.

Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir.1996). We would serve a greater purpose by admonishing counsel to follow proper procedure and to heed the orders of our colleagues on the trial bench, and by requiring that litigants give the system the opportunity to resolve disputes through trial, rather than allowing them to simply “take a dive” and then seek relief in the court of appeals.

In Marshall , the plaintiff refused to proceed with trial and the district court dismissed the case for failure to prosecute. We stated that “the scope of appellate review of an order of dismissal is extremely narrow, confined solely to whether the trial court has abused its discretion.” 492 F.2d at 918 . Appropriately, we found that the district court did not abuse its discretion:

Indeed, appellant left the district court no choice.... [Tjhe “proper procedure” was to proceed.... The issues in the ease may well have been resolved_ If appellant had proceeded, he might have been successful. If appellant had proceeded and lost, the appellate court would have had a complete record upon which to make its determination.

For these reasons we affirm the dismissal for lack of prosecution and do not reach *387 the substantive issue involving the [underlying ruling]. ...

Id. at 919 .

Marshall emphasized that if we were to review the interlocutory rulings, we would “undermine the ability of trial judges to achieve the orderly and expeditious disposition of cases.” Id. What appellant would have us do, and what the majority does, directly undermines the trial court’s authority to control the proceedings before it.

In Sullivan , plaintiffs sued an insurance company for a premium refund. Plaintiffs sought class certification, which was denied by the district court on the day of trial. In the face of this ruling, plaintiffs refused to present any evidence. The court then dismissed the case for failure to prosecute. We noted that since plaintiffs did not contend that the court abused its discretion by dismissing for failure to prosecute, the only matters they presented for review on appeal were the interlocutory class certification decisions. We dismissed for lack of an appeal-able order. Counsel for appellant here made it very clear at oral argument that he does not challenge the district court’s discretion in dismissing his case.

In Spain , we faced the situation where, after the district court granted partial summary judgment, the plaintiff refused to proceed on her remaining claims of racial discrimination and unlawful retaliation. She believed (as appellant here mistakenly believes) that the court’s previous rulings effectively precluded her from succeeding on her remaining claims. The court dismissed the remaining claims for failure to prosecute. On appeal, we held that the court did not abuse its discretion in so doing. Spain’s refusal to prosecute her remaining claims forever barred any recovery on them. We reasoned that:

[a] party disappointed with a court’s ruling may not refuse to proceed and then expect to obtain relief on appeal from an order of dismissal or default.

26 F.3d at 454 . Bethel was no less obliged to proceed simply because he had an earlier underlying judgment in his favor.

The majority tries to distinguish Spain on the basis that the appellant here does not seek to be relieved of the dismissal. I believe that he must, however, have the order of dismissal set aside before the interlocutory rulings can be reviewed. The majority, instead, saves appellant (and future appellants like him) from his own sanctionable conduct and grants him an undeserved opportunity to have the judgment from the first trial reinstated. The majority reasons that, because review under our ruling on the merits will end this litigation, the underlying interlocutory orders were transformed into final, ap-pealable orders.

This reasoning, while temptingly efficient, does not comport with law or logic. The general rule is that an order granting a new trial becomes reviewable after the second trial (or other judgment entered in the normal course of proceedings). If the second trial is aborted by a dismissal when a litigant refuses to proceed, the litigant must suffer the consequences of his refusal. I would conclude that Bethel’s position, that he need not challenge the dismissal for failure to prosecute, is fatal to his appeal. 1

*388 Were we simply to affirm this unquestionably proper dismissal order, which I say we must, we would do no injustice to appellant. When the district court informed appellant well before the date of the second trial that, if he refused to proceed, it would dismiss the case for failure to prosecute, the record establishes that the appellant clearly indicated he understood the consequences of a judgment for failure to prosecute: his appeal of the underlying rulings would be barred.

The district court indicated, as we did in Marshall , that if appellant prevailed at the second trial his allegations of error would be cured by results; and if not, he could then appeal. The court placed no unreasonable demands on appellant, but required only that he give the system the opportunity to produce a favorable result under well-established procedure. And if the court’s interlocutory ruling had caused him to lose, he could then appeal. That is how the system works. Appellant nevertheless chose to quit at a most inopportune time. We should not save him from his knowing and calculated decision.

The court in Alr-Torki confronted this very issue and held that an order granting a new trial is unreviewable if the claims are subsequently dismissed for failure to prosecute. Like appellant, Al-Torki won at the first trial. After the district court granted defendant a new trial, Al-Torki failed to appear at the second trial and the district court dismissed the ease for failure to prosecute. Unlike appellant, Al-Torki argued that the district court erred by dismissing for failure to prosecute.

After the appellate court rejected Al-Torki’s argument regarding the dismissal, it determined that, as a result of the proper dismissal, the order granting the new trial was unreviewable. The court opined:

This ease presents a simple refusal to appear at the time set for trial. Such a willful failure to appear for trial forfeits a litigant’s right to appeal interlocutory orders prior to judgment.

78 F.3d at 1386 . Appellant’s conduct here was no less willful. The result and reasoning in Al-Torki is sound, and it is consistent with our jurisprudence.

II.

I fully recognize that a litigant who has succeeded in a first trial may not want to fight the battle again, and that the rule denying immediate review of an order granting a new trial places burdens on the originally successful litigant. Nevertheless, new trial orders are not unusual, and the rule is firmly rooted in the policies embodied by Congress in 28 U.S.C. § 1291 , which support appeals only from, and of, final judgments, save in very limited circumstances.

Moreover, the law recognizes these burdens and provides a procedure by which a party may move for entry of judgment in favor of the opposing party. If his motion is granted, he may then appeal without enduring the second trial. See United States v. Procter & Gamble Co., 356 U.S. 677 , 78 S.Ct. 983 , 2 L.Ed.2d 1077 (1958) (entry of a final judgment in favor of party sought by opposing party allows the opposing party to appeal the adverse underlying rulings); Trevino-Barton v. Pittsburgh Nat’l Bank, 919 F.2d 874 (3d Cir.1990) (same). This procedure affords review of the order, even though the party appealing solicited the judgment.

A party who is willing to gamble on review of the new trial order, however, may be able to win the right to appeal by soliciting entry of an adverse final judgment. There is a cogent argument that the solicited judgment is final if the scope of review is limited to the order granting a new trial and affirmance of that order leads to affir-mance of the judgment rather than remand for a new trial. Appeal is bought at the cost of wagering all on reversal of the new trial order, but this cost may seem small to a party who is unable to afford a new trial in any event.

15B Charles A. Wright et al., Federal Practice and Procedure § 3915.5 (2d ed. 1992 & Supp.1995).

Appellant states that he moved for entry of judgment on this basis, but the district court denied the motion. He did not attempt to appeal this order — which would be rendered essentially unreviewable following a retrial— under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), and *389 instead emphatically indicated to the court and opposing counsel that he would indeed “put on a complete trial.” Nonetheless, appellant refused to go forward on the day of trial, and the district court, not surprisingly, dismissed the case for failure to prosecute.

III.

Appellant’s refusal to try his case combined with counsel’s statement at oral argument on appeal that appellant now will risk all on our decision does not substitute for his obligation to obey proper orders and to follow proper procedure, and can neither nullify the otherwise proper dismissal, nor resuscitate his earlier verdict. I would hold that the district court’s underlying orders are not reviewable after a dismissal for failure to prosecute unless and until appellant can successfully challenge the dismissal. Because the dismissal here is unassailed and unassailable, I would affirm the judgment of the district court and never reach the issue of whether the district court erred by ordering a new trial.

. Analytically, a second trial held after grant of a new trial under Fed.R.Civ.P. 59 can be viewed as a continuation of the first. The new trial order thus merges with the second judgment.

New trial orders can be seen as part of the original and ordinary trial process, to be protected against immediate appellate intrusion for reasons little different from the reasons that preclude direct appeal from evidentiary rulings during the course of trial. In many cases a retrial can be accomplished much more quickly than an appeal, and the result may avoid the need for any appeal.

15B Charles A. Wright et at., Federal Practice and Procedure § 3915.5 (2d ed. 1992 & Supp.1995).

Although this case involves the grant of a new trial under Fed.R.Civ.P. 60(b)(3), the grant of a new trial under either rule is an unappealable interlocutory order which is afforded review after subsequent judgment. When appeal is taken from a properly obtained judgment in the continued proceedings, if the judgment is inconsistent with the result in the first trial, the appellate court can then determine whether the initial result prevails because the grant of the new trial was error. When, however, the entire case is dismissed for failure to prosecute, unless the court abused its discretion in ordering the sanction, the correctness óf any interlocutory decisions is irrelevant and the sanction should prevail.