Tenth Circuit Provides Some Bonus Appellate Practice Pointers in HCG Platinum


In a previous post, we unpacked the Tenth Circuit’s decision in HCG Platinum, examining the issue of what standard to use when applying discovery sanctions for failure to make appropriate disclosures (read that post here). But there were also a few quirky procedural nuances in the case. And the panel chose to deal with them primarily through several robust footnotes. In doing so, the Court gives readers bonus guidance on some sticky issues of appellate practice and procedure.

As a refresher, the case involved a contract dispute between a product placer and a manufacturer of a dietary supplement and whether the product placer had been appropriately sanctioned for failing to make disclosures.

This post looks at the HCG Platinum decision through the appellate procedure lens, pointing out pitfalls for practitioners to avoid in their practice, and noting good tips for future litigation. Here are some of the highlights. 

Ordinarily, Rule 54(b) certification is preferred to appeal an otherwise non-final order, not one party’s dismissing some claims so others can be appealed

Procedurally, the product placer’s case was dismissed, but the manufacturer still had its case left for trial. Technically, that meant that the judgment was not final. In order to make the case appealable, the manufacturer dismissed its claims without prejudice with the intent that the case could go up on appeal. In the interim, the district court certified the judgment as final under Federal Rule of Civil Procedure 54(b). Recall, this is the rule that allows a trial court to certify an otherwise interlocutory order and make it immediately appealable if certain criteria are met.

The Tenth Circuit pointed out that Rule 54(b) certification is a better way to ensure that an appeal is proper and that normally, a party should not be able to “confer” jurisdiction on the appellate court by voluntarily dismissing claims without prejudice. 

A 54(b) certification can be entered after the notice of appeal, and the Court will find the appeal final as of the date of the certification

It is important to remember is that the federal appeals court is a court of limited jurisdiction—it will only hear those appeals that are properly before it. If a party attempts to file an appeal of an interlocutory, or non-final order, the appellate court will normally dismiss the appeal for lack of jurisdiction. But if a Rule 54(b) certification is filed in the interim, it can perfect an otherwise improper appeal.

A separate notice of appeal is typically required to obtain review of an attorney fees award that follows a judgment on the merits

After the product placer filed its notice of appeal, the district court entered an order awarding the manufacturer its attorney fees. The Tenth Circuit reminded readers that ordinarily, a separate notice of appeal is required to obtain review of an attorney fees award that follows a judgment on the merits. In the event an attorney fee award is entered after a first notice of appeal is filed, the proper procedure is either to amend the original notice of appeal to challenge the fee award, or file a separate, new notice of appeal. Unless the litigant does this, the issue may not be properly before the appellate court. Because the court will have jurisdiction only over the issues that are properly and timely raised, this is an important practice point that can have real impact on the dollars and cents of a case—especially for the attorney. Do not assume that an attorney fee award will become moot if the underlying judgment is reversed. In this case, the panel reversed, but left intact the district court’s attorney fee award because that award was not actually before it on appeal.

An opening brief will sometimes be treated as the “functional equivalent” of a notice of appeal under certain circumstances

While normally, a notice of appeal is needed in order bring the issue of attorney fees to the court’s attention, sometimes an opening brief will fit the bill. If a party’s opening brief is filed within the same time frame as the notice of appeal would have to be filed, and it sufficiently raises the issue, the Court will sometimes treat the brief as the functional equivalent of a notice of appeal for an issue that needs a separate notice of appeal, like a later attorney fees award judgment. In this case, however, the product placer failed to raise the issue in a notice of appeal, and the opening brief was filed after the time to file an appeal on the attorney fees issue had passed. The fact that the arguments were made in the opening brief did not suffice to make it a functional equivalent because of the time issue. So the court concluded that it did not have jurisdiction to decide the attorney fees issue. When dealing with the issue of attorney fees awarded after a notice of appeal has been filed, be sure to properly alert the appellate court to the issue. And typically, you will not be filing your opening brief so fast that it can serve as a notice of appeal.


Because of the generality of the information on this site, it may not apply to a given place, time, or set of facts. It is not intended to be legal advice, and should not be acted upon without specific legal advice based on particular situations