Doran v. J. P. Noonan Transp. Inc., et al

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bobby R. Baldock,* Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. Of the Tenth Circuit, sitting by designation. [16-1466]

Case: 16-1466

Document: 00117138731

Page: 1

Date Filed: 04/05/2017

Entry ID: 6081832

United States Court of Appeals
For the First Circuit
No. 16-1466
DALE DORAN, individually and on behalf of all persons similarly
situated,
Plaintiff, Appellant,
MICHAEL J. COAKLEY, individually and on behalf of all persons
similarly situated; MARK MORIARITY, individually and on behalf
of all persons similarly situated,
Plaintiffs,
v.
J. P. NOONAN TRANSPORTATION, INC.; CLANCY TRANSPORTATION, INC.;
J. PETER NOONAN, SR.; J. PETER NOONAN, JR.; CHRISTOPHER NOONAN;
PAUL NOONAN,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before
Lynch, Baldock,* and Kayatta,
Circuit Judges.

David A. Cohen, with whom The Basil Law Group, P.C., John A.
Kiernan, Michael D. Chefitz, and Bonner, Kiernan, Trebach &
Crociata, LLP were on brief, for appellant.
Geoffrey P. Wermuth, with whom Kathryn M. Murphy and Murphy,
*

Of the Tenth Circuit, sitting by designation.

Case: 16-1466

Document: 00117138731

Page: 2

Date Filed: 04/05/2017

Entry ID: 6081832

Hesse, Toomey & Lehane, LLP were on brief, for appellees.

April 5, 2017

Case: 16-1466

Document: 00117138731

Page: 3

KAYATTA, Circuit Judge.

Date Filed: 04/05/2017

Entry ID: 6081832

The district court in this case

entered an interlocutory order dismissing most but not all of
plaintiffs' claims.

At plaintiffs' urging, the district court

then remanded the case to the state court from which it was
removed. One of the plaintiffs thereafter filed a notice appealing
the remand order, followed by a brief devoted to challenging the
interlocutory order that dismissed most of his claims.

For the

following reasons, our rules and precedent require that we deem
plaintiff's right to embark on this appellate foray waived.
I.
We

recite

the

facts

of

this

case

briefly,

drawing

primarily from the undisputed facts contained in the record and
plaintiff's opening brief.
Plaintiff Dale Doran is a professional truck driver who
was previously employed by defendant J. P. Noonan Transportation,
Inc. ("JPN").1
federally

JPN is a Massachusetts-based corporation and

authorized

motor

carrier

that

transports

petroleum

products such as gasoline, diesel fuel, and home heating oil
throughout the northeastern United States.

1

During his at-will

The record reflects a dispute as to whether Doran's employer
is JPN or codefendant Clancy Transportation, Inc. Nevertheless,
because plaintiff's brief states that he was employed by JPN, and
because defendants state in their brief that "[f]or purposes of
this appeal, [they] are satisfied with the Plaintiff's Statement
of the Case/Factual Background," we describe JPN as Doran's
employer.

- 3 -

Case: 16-1466

Document: 00117138731

Page: 4

Date Filed: 04/05/2017

Entry ID: 6081832

employment for JPN, Doran worked out of JPN's terminal in Hooksett,
New Hampshire.

Doran typically drove fourteen hours per day

without taking any paid breaks.

Doran claims that under the terms

of an oral contract with JPN, he was to be paid 30% of the "gross
revenue" earned by the truck each day.

From 2009 to 2014, JPN

charged a "fuel surcharge" to many of its customers to account for
"rapidly fluctuating changes" in the cost of the fuel used by the
delivery trucks.

Doran delivered loads for JPN for which JPN

charged the fuel surcharge.

He did not receive any portion of

these surcharges.
II.
On June 19, 2015, Doran and two other named plaintiffs
filed

a

putative

class

action

suit

against

defendants

in

Massachusetts Superior Court, raising a variety of statutory and
common law claims.

Defendants successfully sought removal of the

suit to the United States District Court for the District of
Massachusetts pursuant to the removal provision of the Class Action
Fairness Act ("CAFA"), 28 U.S.C. § 1453.
On February 26, 2016, the district court granted without
written explanation defendants' motion for summary judgment as to
all of plaintiffs' statutory claims and all but one of plaintiffs'
common law claims.

Shortly thereafter, the district court issued

an order in which it determined that "the jurisdictional amount is
measured as of the time of removal, and that '[e]vents subsequent

- 4 -

Case: 16-1466

Document: 00117138731

Page: 5

Date Filed: 04/05/2017

Entry ID: 6081832

to removal that reduce the amount in controversy do not divest a
federal court of CAFA jurisdiction.'"

Accordingly, the court

concluded that it continued to retain "original jurisdiction over
this action" even though its grant of partial summary judgment
reduced the amount in controversy below $5,000,000.

The court

went on to conduct a trial on Doran's remaining common law claim,
which resulted in a jury verdict for JPN.
On March 24, 2016, the district court held a status
conference.

Noting that it had a "jurisdictional" question, the

court stated that it "had little trouble with how the Court's
jurisdiction under the Class Action Fairness Act played out against
the original scope of [plaintiffs'] complaint because it's a
putative class action and [plaintiffs] had all those [statutory]
claims . . . for which [they] could get attorneys fees and the
like."

The court then observed that "most of [plaintiffs' claims]

went by the boards," but that plaintiffs "have a right to appeal."
The court proceeded to reiterate that it had "no doubt"
not only that it "had jurisdiction over the complaint as originally
crafted," but also that it "had supplementary jurisdiction to take
the next step and indeed [it] ha[s] supplementary jurisdiction to
follow this thing through to conclusion."

However, the court

expressed concern insofar as the court was "going to have to have
a

run-up

to

a

trial"

and

it

was

jurisdiction" to do so.

- 5 -

"not

so

sure

[it]

ha[s]

Case: 16-1466

Document: 00117138731

After

Page: 6

confirming

that

Date Filed: 04/05/2017

the

case

Entry ID: 6081832

originated

in

Massachusetts Superior Court, the court suggested that "maybe [it]
should send [the case] back."

In response, counsel for Doran and

the other plaintiffs announced that they "agree[d]" with the
court's suggestion of a remand, because "even though the Court had
original jurisdiction at the time the case was removed," the
court's

summary

jurisdiction."
lost

judgment

ruling

divested

it

of

"original

Defendants' counsel disputed that the court had

jurisdiction,

but

nevertheless

concluded

that,

because

plaintiffs had not moved for class certification, he was "not sure
there's

anything

[he]

could

say

that

matters

at

this

point

frankly."
Acknowledging that "there [wa]s no motion for class
certification before the Court," the district court announced that
it would remand the case to state court, as plaintiffs said it
should.

An Order of Remand issued on March 29, 2016.

Twenty-nine

days later, Doran filed a Notice of Appeal in which he stated the
following:

"Notice is hereby given that Dale Doran . . . hereby

appeals to the United States Court of Appeals for the First Circuit
from an Order of Remand entered in this action on March 29, 2016."
III.
Doran asks us to review the summary judgment order issued
by the district court before it remanded the remaining claims to
state court.

His notice of appeal, however, does not mention or

- 6 -

Case: 16-1466

Document: 00117138731

Page: 7

Date Filed: 04/05/2017

even hint at any attempt to appeal that order.

Entry ID: 6081832

The Federal Rules

of Appellate Procedure state that a notice of appeal "must . . .
designate the judgment, order or part thereof being appealed."
Fed. R. App. P. 3(c)(1)(B).

The case law, in turn, states that we

have no basis to reverse an order not so designated.

See, e.g.,

Santos-Santos v. Torres-Centeno, 842 F.3d 163, 169 (1st Cir. 2016).
Doran's briefs on appeal describe the order of remand
designated in his notice as a "final judgment."

Although Doran

does not say so, we might infer from this description the beginning
of an effort to invoke this circuit's practice of reading a notice
of appeal from the "final judgment" as effectively designating all
interlocutory rulings that "merge in the judgment."

United States

ex rel. Booker v. Pfizer, Inc., 847 F.3d 52, 55 (1st Cir. 2017)
(quoting John's Insulation, Inc. v. L. Addison & Assocs., Inc.,
156 F.3d 101, 105 (1st Cir. 1998)).

But, if the order of remand

is a final judgment, then it is a final judgment to which Doran
affirmatively acquiesced.
Though

we

provide

litigants

an

escape

judgments to which they consent, it is a narrow one:

hatch

from

if a party

consents to a final judgment in order to appeal prior orders
leading up to that judgment, the party may appeal those orders so
long as it reserves the right to do so.

Robb Evans & Assocs., LLC

v. United States, Nos. 15-2540, 15-2552, 2017 WL 836055, at *3
(1st Cir. March 3, 2017) (quoting BIW Deceived v. Local S6, Indus.

- 7 -

Case: 16-1466

Document: 00117138731

Page: 8

Date Filed: 04/05/2017

Entry ID: 6081832

Union of Marine & Shipbuilding Workers, 132 F.3d 824, 828 (1st
Cir. 1997)).

And while an "unequivocal" statement of an intent to

appeal may serve as sufficient evidence of such a reservation, see
BIW

Deceived,

intention,

132

F.3d

apparently

at

828,

because--as

Doran

never

counsel

voiced

any

such

explained

at

oral

argument before this court--the decision to appeal had not yet
been made when remand was sought.
The

foregoing

exhausts

our

survey

of

the

possible

indulgences that a panel of judges might arguably grant under
current law on this record.

Even if we were to treat the remand

order as the equivalent of a "final judgment," then it would be a
judgment to which Doran consented without clearly reserving the
right to appeal any ruling that may have merged into that judgment.
IV.
We dismiss the appeal, without affirming or reversing
the district court's summary judgment ruling.

- 8 -