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4. What advice should the attorney give?
The factory has asked its attorney's advice as to whether it may appeal the court's denial of summary judgment in order to avoid an expensive trial.
A man who owned riverfront property sued an upstream factory in federal court for polluting the river, seeking injunctive relief and $250,000 in damages. The factory moved for summary judgment on the ground of res judicata (claim preclusion), arguing that the man had sued on and lost an identical claim one year before. The court denied the motion.
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An interlocutory appeal is discretionary and may be available when: (i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and (ii) the court of appeals agrees to allow the appeal.
In federal litigation, Federal Rule of Civil Procedure (FRCP) 54(b) may allow for an appeal when there is a final judgment on one claim but other claims in the same suit remain. The standard for this partial judgment rule is that the «court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.» If the court does not expressly determine that there is no just reason for delay, there can be no appeal. Fed. R. Civ. P. 54(b)
If the claim or issue is separable from and collateral to the main suit and is too important to require deferring appellate review, it may be classified as a judgment in a separate («collateral») proceeding and thus be appealable.
C is correct. Once a final judgment is entered, then the factory may appeal. The denial of the motion for summary judgment is not appealable until the trial has ended and/or a final judgment has been entered. As discussed below, no other exception applies to allow the denial of the summary judgment to be heard on appeal.
A is incorrect. This answer choice states the standard for interlocutory appeals, which allow review without a final order in specific circumstances. In this case, the motion for summary judgment does not contain a controlling question of law on which courts are divided. An appeal from the denial of summary judgment would not meet the requirements for interlocutory review.
B is incorrect. This answer choice states the standard for the appealability of partial judgments. Although in some cases a party may appeal a partial judgment, that is only when the court explicitly finds that there is no just reason for delay. This is inapplicable here, where no such finding has been made, nor is there any reason to believe that a delay would be unjust.
D is incorrect. This answer is only partially correct. Although the factory may not appeal, it is not because the denial of summary judgment satisfies the standard for a collateral order appeal. A collateral order must be a claim or issue that is separable from the main suit. Collateral issues may be appealed if too important to require deferring appellate review. The denial of summary judgment here is not collateral and cannot be appealed.