Metropolitan News-Enterprise


Thursday, April 30, 2020


Page 1


Ninth Circuit:

Agreement Precluding Appeal of a ‘Judgment’ Applies to Court’s Final ‘Order’ in Case


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday dismissed a plaintiff’s appeal from an order granting the defendant’s motion to terminate the parties’ obligations under a contract, holding that an accord which ended their dispute specifying that there would be no “appeal from any judgment entered pursuant to this Agreement” barred an appeal from a magistrate judge’s order.

A three-judge panel, in a memorandum opinion, rejected plaintiff JMJ Mining, LLC’s contention that if the parties intended to bar an appeal from an “order,” they would have used the words, “judgment or order.”

Applying California law in a diversity case, the opinion points to Code of Civil Procedure §577 which defines a “judgment” as “the final determination of the rights of the parties in an action or proceeding.” The opinion says:

“That is precisely the type of determination that the district court made.”

The opinion notes that Magistrate Judge Carolyn K. Delaney of the Eastern District of California granted Kenneth and Susan Zibs’ motion to terminate obligations under a contract and awarded them attorney fees. It continues:

“In doing so, the court brought the case to a close. There was nothing left to be adjudicated between the parties. The order thus functioned as a judgment in every respect.”

Under California law, substance takes precedence over a label, the panel said.

The opinion—signed by Ninth Circuit Judge Susan P. Graber, Senior Ninth Circuit Judge J. Clifford Wallace, and Sixth Circuit Judge Ronald Lee Gilman, sitting by designation—adds:

“At bottom, JMJ’s position is simply inconsistent. If the district court’s decision were not a final judgment, then JMJ could not have appealed from it….Accordingly, we conclude that the appeal waiver was clear and express and that JMJ has waived its right to appeal.”

The case is JMJ Mining, LLC v. Zib, 18-17103.


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