Federal Civil Procedure: To Everything There is a Season: Bringing a Timely Appeal from the Denial of Summary Judgment


Linda S Mullenix

2 Preview of United States Supreme Court Cases 52


This article previews the issues and arguments in the Supreme Court’s 2010-11 Term case, Ortiz v. Jordan. The primary issue before the Court is whether a United States Court of Appeals may review a trial court’s denial of summary judgment where the losing party did not seek interlocutory review of the summary judgment order, then suffers an adverse judgment at trial, and subsequently fails to raise the summary judgment issue in a timely fashion in its routine, post-trial motions?  

Michelle Ortiz, an inmate at the Ohio Reformatory for Women, sued Jordan and Bright, reformatory employees, for alleged constitutional and civil rights violations. The defendants alleged a qualified immunity defense and moved to dismiss by a summary judgment motion. The trial court denied the motion and the defendants did not bring an immediate appeal of that denial. The defendants then lost at trial, but did not raise the prior denial of summary judgment in a timely, routine post-trial motion. Under these circumstances, the Sixth Circuit Court of Appeals concluded that the defendants could seek appellate review of the prior summary judgment order, and reversed the trial court’s denial of summary judgment, thereby vacating Ortiz’s trial judgment.


In Ortiz, the Supreme Court will determine whether a party who is denied summary judgment before trial, and who does not seek immediate interlocutory review, may subsequently seek appellate review of the summary judgment denial after a jury returns an adverse judgment against that party. The Courts of Appeal currently are split on this issue, and the Court will have to resolve this split in authority.


The Ortiz appeal implicates an important procedural issue that clearly may affect the ultimate outcome of long and protracted litigation. What happened to Ortiz is a good example of the impact of rules on outcomes. Ortiz has endured litigation spanning almost a decade, arising out of her constitutional and statutory claims relating to an alleged prison assault. In this period she has gone through a jury trial that awarded her substantial compensatory and punitive damages against two defendants.  


However, after nearly eight years of successful litigation, Ortiz had her jury verdict vacated by an appellate court that determined that the trial judge erroneously decided the defendants’ prior summary judgment motion on qualified immunity from suit. The defendants, in this same period, undertook the risk of trial and lost, but then finally prevailed on their qualified immunity defense on appeal. Now, however, the defendants’ ultimate victory is imperiled by Ortiz’s appeal to the Supreme Court. Whether the defendants properly followed the rules relating to both interlocutory appeal and challenges to trial procedure, is at the nub of this case.


Full Citation

Linda S Mullenix, Federal Civil Procedure: To Everything There is a Season: Bringing a Timely Appeal from the Denial of Summary Judgment, 2 Preview of United States Supreme Court Cases 52 (November 5, 2010). View Online