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Come now the Plaintiffs, to move the Court to Certify that the basis set forth in Attorney
Scarola's Reply to Attorney Wolf's Response to Scarola's Notice of Appeal, DE 2418, is frivolous.
Under Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), the appellants (hereinafter the
"Scarola Plaintiffs") cannot prevail in an appeal of the Court's Order on the plaintiffs' use of aliases,
I. The Court's Order on Pseudonyms doesn't fit within the collateral order doctrine.
In Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), the district court ordered
Mowhawk to disclose certain confidential materials on the ground that Mohawk had waived the
attorney-client privilege. Justice Sotomayor, affirming a decision of the 11th Circuit, wrote that
1
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disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under
the collateral order doctrine. Id. at *1.1 The instant case is based on similar facts.
“Under Cohen,” the Eleventh Circuit had explained, “an order is appealable if it (1)
conclusively determines the disputed question; (2) resolves an important issue completely separate
from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment.”
541 F. 3d 1048, 1052 (11th Cir. 2008) (per curiam). It was the third element, whether the order
would be effectively unreviewable on appeal from a final judgment, that made the collateral order
doctrine inapplicable, because “a discovery order2 that implicates the attorney-client privilege”
In applying Cohen’s collateral order doctrine, the Supreme Court has stressed that it must
“never be allowed to swallow the general rule that a party is entitled to a single appeal, to be
deferred until final judgment has been entered.” Digital Equipment Corp. v. Desktop Direct, Inc.,
511 U. S. 863, 868 (1994) (citation omitted). The admonition recognizes that interlocutory appeals
encroach on the prerogatives of district court judges, who play a “special role” in managing
ongoing litigation. Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981); Richardson-
Merrell Inc. v. Koller, 472 U. S. 424, 436 (1985) (“[T]he district judge can better exercise [his or
her] responsibility [to police the prejudgment tactics of litigants] if the appellate courts do not
1
Justice Thomas wrote a separate opinion concurring in part and concurring in the judgment. Id.
Justice Thomas didn't believe the Cohen doctrine applied at all. There were no dissenting opinions.
2
See 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3914.23, p. 123 (2d
ed. 1992) (“[T]he rule remains settled that most discovery rulings are not final”).
3
The Scarola Plaintiffs rely on Mahone v. Ray, 326 F.3d 1176, 1179 (11th Cir. 2003) and James
v. Jacobson, 6 F.3d 233 (4th Cir. 1993). These cases predate Mohawk. The Mahone case was not
about the collateral order doctine. In Mahone, the question was whether a district court retained
jurisdiction to decide a motion for reconsideration under Rule 60(b) after a notice of appeal had
been filed.
2
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The justification for immediate appeal must therefore be sufficiently strong to overcome
the usual benefits of deferring appeal until litigation concludes. Mohawk at *5. Significantly, “the
third Cohen question, whether a right is ‘adequately vindicable’ or ‘effectively reviewable,’ simply
cannot be answered without a judgment about the value of the interests that would be lost through
rigorous application of a final judgment requirement.” Id., citing Digital Equipment, 511 U. S. at
878–879. That a ruling “may burden litigants in ways that are only imperfectly reparable by
appellate reversal of a final district court judgment ... has never sufficed.” Id. citing Digital
Equipment at 872.
inquiry.” Coopers & Lybrand v. Livesay, 437 U. S. 463, 473 (1978). Rather, the focus is on “the
entire category to which a claim belongs.” Digital Equipment, 511 U. S., at 868. As long as the
class of claims, taken as a whole, can be adequately vindicated by other means, “the chance that
the litigation at hand might be speeded, or a ‘particular injustic[e]’ averted,” does not provide a
basis for jurisdiction under §1291. Id., quoting Van Cauwenberghe v. Biard, 486 U. S. 517, 529
(1988) (alteration in original). Here, the category of claim is whether a plaintiff can proceed to
trial under a pseudonym. It is nearly on all fours with Mohawk, which was about whether certain
The Scarola Plaintiffs argue that "appeals under the collateral order doctrine do not
generally divest the district court of jurisdiction over issues not under consideration in the appeal."
4
Since none of my clients are joining in the appeal, we intend to comply with the Order, which
requires either identifying the plaintiffs on the record, or withdrawing their claims, within 45 days.
The withdrawal of a claim should be without prejudice to refiling it someday, in the event of a
favorable decision in the court of appeals, however unlikely that may be.
3
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DE 2419 at 2.5 This mistates the rule, which is that a party generally has to wait for a final
judgment. The Scarola Plaintiffs' appeal clearly doesn't fall within the collateral order doctrine.
As the Supreme Court has explained, "a federal district court and a federal court of appeals should
not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an
event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case involved in the appeal." Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); see Marrese v. American Academy of
Orthopaedic Surgeons, 470 U.S. 373, 379 (1985), reh'g denied, 471 U.S. 1062 (1985). The Scarola
Plaintiffs apparently rely on the limiting language of "those aspects of the case involved in the
appeal," 459 U.S. at 58, and believe they can litigate their cases simultaneously in this Court and
Finally, the Scarola Plaintiffs will have to overcome a very difficult standard of review.
The Court found there was a presumption that the parties' names are public, and that the Plaintiffs
hadn't adduced evidence to rebut the presumption. For instance, evidence in the form of deposition
testimony by one of the bellwether plaintiffs, that the murderer was never punished for the crime,
and is in prison for another crime, was insufficient to rebut the presumption. 6 The Scarola
Plaintiffs will have to argue that the ruling on this case, and similar, was an abuse of discretion.
The Plaintiffs admitted that none of them had been harmed or threatened because of this litigation.
5
The Scarola Plaintiffs rely on City of New York v. Beretta U.S.A. Corp., 234 F.R.D. 46, 50
(E.D.N.Y. 2006). This case has no binding authority, entirely different facts, and there is no point
in analyzing it.
6
We're not sure this was the right analysis either. If the Court had balanced the Plaintiffs'
reasonable fears against the public's interest in knowing their names, it should find that the public
has virtually no interest in exposing them. What is anyone's legitimate interest in doing that? The
plaintiffs shouldn't have to prove incidents of retaliation or threats to demonstrate the risk of going
to trial, potentially having newspapers report their names, and in some cases, the names of the
actual murderers, who were never punished. Nevertheless, the order is not appealable under the
collateral order doctrine.
4
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Some courts have held that a district court may retain jurisdiction by declaring an appeal
to be frivolous. See McMath v. City of Gary Indiana, 976 F.2d 1026, 1031 (7th Cir. 1992) (“It is
for the district court, and not [the Court of Appeals], to determine in the first instance whether an
appeal is frivolous.”); Levin v. Alms and Associates, Inc., 634 F.3d 260, 266 (4th Cir. 2011);
League of Women Voters of Ohio v. Blackwell, 432 F. Supp. 2d 734, 740 (N.D. Ohio 2006) aff'd
in part, rev'd in part sub nom. League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th
Cir. 2008) (district court certified the appeal of sovereign immunity frivolous and retained
Toscano v. City of Fresno, 13-cv-1987-SAB (EDCA, Oct 19, 2015); FRAP 38, Frivolous Appeal
Counsel was unable to find any 11th Circuit cases on point. However, time is of the
essence. Before the District Court begins transferring the record on appeal, it should certify that
the appeal is frivolous under Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009). In any
event, this appeal should not be allowed to tie up the cases of Plaintiffs who are not joining in it.
Respectfully submitted,
5
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Certificate of Service
I hereby certify that on this 20th day of April, 2019, I filed the foregoing document, and
all exhibits thereto with the Clerk of the Court using the Court's Electronic Case Filing (ECF)
system, which will send electronic notices to all persons entitled to receive them.
6
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ATS ACTIONS
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Proposed Certification
In consideration of the Notice of Appeal filed on April 18, 2019, all responses and replies
thereto, and to Plaintiffs Attorney Wolf's Expedited Motion to Certify Appeal as Frivolous, or to
Stay Proceedings of Cases Subject to the Appeal, and all responses and replies thereto, and to all
CERTIFIED that the basis for appeal set forth in the Reply at DE 2418 is FRIVOLOUS.
Under Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), the Court's Order on the use of
pseudonyms, dated April 11, 2019, DE 2397, does not fall within the collateral order doctrine.
___________________
Kenneth A. Marra
U.S. District Judge