UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
REUVEN GILMORE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 01-853 (GK)
)
PALESTINIAN INTERIM SELF- )
GOVERNMENT AUTHORITY, et. al.,)
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiffs, who are various family members of Esh Kodesh
Gilmore, the deceased victim of an alleged terrorist shooting in
Jerusalem, Israel on October 30, 2000, bring this action against
Defendants Palestinian Interim Self-Government Authority (“PA”) and
Palestinian Liberation Organization (“PLO”) under the Anti-
Terrorism Act of 1991 (“ATA”), 18 U.S.C. § 2331, et seq. On
December 28, 2008, this Court entered an order [Dkt. No. 157]
granting Defendants’ Motion to Vacate Clerk’s Entry of Default,
ordering Defendants to post a bond in the amount of $1 million by
February 1, 2010, directing the parties to submit Rule 16
statements by February 11, 2010, and setting an initial scheduling
conference for February 16, 2010. On January 11, 2010, Plaintiffs
appealed the Order granting Defendants’ Motion to Vacate.
Defendants filed a Motion to Dismiss Appeal on January 22, 2010.
This matter is presently before the Court on Plaintiffs’
Motion to Stay and Plaintiffs’ Ex Parte Motion for an Immediate
Stay of proceedings before this Court [Dkt. Nos. 162 and 163]
pending resolution of the matter on appeal. Upon consideration of
the Motions, Opposition, and the entire record herein, and for the
reasons set forth below, the Motions to Stay are denied.
28 U.S.C. § 1291 limits appeals as of right from “final
decisions” of the district courts. The collateral order doctrine
provides a narrow exception to this rule, permitting appeal before
entry of final judgment for district court decisions “that are
conclusive, that resolve important questions completely separate
from the merits, and that would render such important questions
effectively unreviewable on appeal from final judgment in the
underlying action.” Digital Equipment Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 1995-96 (1994).
Plaintiffs, while conceding the basic prevailing law, argue in
support of their Motions to Stay that this Court’s December 28,
2009 Order granting the Motion to Vacate fits within the collateral
order doctrine, and therefore that the general rule codified in §
1291 is not applicable to this case.
Plaintiffs are wrong. This Circuit has made clear that the
collateral order doctrine does not apply to an order vacating an
entry of default. In Cason v. District of Columbia Dep't of
Corrections, No. 06-7203, 2007 WL 2892694, at *1 (D.C. Cir. June
15, 2007), the Court of Appeals concluded that it lacked
jurisdiction to review the District Court’s order vacating the
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entry of default judgment and the order denying reconsideration
“because they are neither final nor appealable interlocutory or
collateral orders,” since “[a]ppellant may challenge these orders
upon entry of the final judgment." Id. Similarly, in Lewis v.
Reno, No. 95-5295, 1997 WL 68545 (D.C. Cir. Jan. 15, 1997), our
Circuit reasoned that “[a]n order granting a motion to vacate
leaves the case pending for further determination and is akin to an
order granting a new trial, and is therefore unappealable.”
Further, the Tenth Circuit has held in an analogous context
that an order granting a Rule 60(b) motion to vacate judgment is
not immediately appealable because the plaintiff “is free to seek
review of the district court's decision after a final judgment is
entered in his case.” Stubblefield v. Windsor Capital Group, 74
F.3d 990, 997 (10th Cir. 1996).
The relevant decisions in the Tenth Circuit and in this
Circuit are in agreement with the Supreme Court’s warning that the
conditions for collateral order appeal should be applied
stringently, and that the issue of appealability “is to be
determined for the entire category to which a claim belongs.”
Digital Equipment Corp., 511 U.S. at 868. See also Mohawk
Industries v. Carpenter, 130 S.Ct. 599, 606 (crucial question in
applying collateral order doctrine is “whether deferring review
until final judgment so imperils the interest as to justify the
cost of allowing immediate appeal of the entire class of relevant
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orders”) (emphasis added); Will v. Hallock, 546 U.S. 318, 353, 126
S.Ct. 952, 959 (2006) (“[I]t is not mere avoidance of a trial, but
avoidance of a trial that would imperil a substantial public
interest, that counts when asking whether an order is ‘effectively’
unreviewable if review is to be left until later.”) (citation
omitted); Doe v. Exxon Mobile Corp., 473 F.3d 345 (D.C. Cir. 2007)
(concluding that dismissal on grounds of political question
doctrine does not fall within collateral order doctrine).
Finally, the cases cited by Plaintiffs in support of a finding
of irreparable harm under the third prong of the collateral order
doctrine are readily distinguishable, and thus unpersuasive. None
of them addresses an order vacating an entry of default. In
Riverhead Savings Bank v. Nat. Mortgage Equity Corp., 893 F.2d
1109, 1114 (9th Cir. 1990), the Court found that a district court
order directing a third-party defendant to pay fees would be
effectively unreviewable if review were delayed until after final
judgment because the third-party defendant, which was in
receivership, had a “strong likelihood of insolvency.” The cases
cited in Riverhead similarly dealt with cases where there was a
“significant danger” of insolvency, where the funds would be
subject to the claims of an intervening party, and where the funds
denied would be irretrievable once distributed to shareholders.
Id. (citations omitted).
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Next, Plaintiffs cite I.A.M. Nat. Pension Fund Benefit Plan v.
Cooper Industries, Inc., 789 F.2d 21, 25 n.7 (D.C. Cir. 1986), for
its brief discussion of the collateral order doctrine, which was
not implicated in the case itself. I.A.M. Nat. Pension Fund
Benefit Plan addressed a district court order requiring the
defendant employer to pay a first installment of withdrawal
liability to the plaintiff fund pending resolution of its
counterclaim. The Court of Appeals for our Circuit held that the
order was not immediately reviewable because the employer did not
show that the order would cause irreparable harm, but neither party
argued--and the Court of Appeals did not suggest--that the
collateral order doctrine applied. Finally, Plaintiffs cite
Chrysler v. Fedders, 670 F.2d 1316 (3d Cir. 1982), a case in which
the Third Circuit found that the collateral order doctrine applied
to a district court order vacating notice of lis pendens.
To summarize, the caselaw in this Circuit directly holds that
the collateral order doctrine does not apply to orders vacating an
entry of default, the prevailing law on the collateral order
doctrine suggests that such orders should not fall within its
scope, and the cases cited by Plaintiffs are distinguishable and
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unpersuasive.1 For the reasons set forth above, Plaintiffs’
Motions to Stay are denied.
An Order will accompany this Memorandum Opinion.
/s/
February 12, 2010 Gladys Kessler
United States District Judge
Copies to: attorneys on record via ECF
1
It is particularly difficult to understand Plaintiffs’
position in light of the fact that one of their chief arguments in
opposing the Motion to Vacate was that granting such a motion would
cause intolerable delay in providing relief to Plaintiffs.
Allowing these Motions to Stay would preclude holding a long-
scheduled Initial Scheduling Conference on February 16, 2010, and
prevent the issuance of a Scheduling Order, which would give the
parties the go-ahead for starting discovery.
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