The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"This Case Has Ended Up in a Rather Confusing Procedural Neverland," "in a Peter Pan-esque State of Immaturity,"
"preventing any court from adjudicating on the merits." (Lawyers' true superpower: The power to turn every question into a question about procedure.)
From Westenbroek v. Kappa Kappa Gamma Fraternity, decided by Judge Alan Johnson (D. Wyo.):
The matter before us concerns a lawsuit that was filed in March of 2023 by six women against their sorority and against Artemis Langford, a member of that sorority who had been admitted through normal procedures the previous fall. {… KKG considers itself a "fraternity" in its governing documents. However, emulating Plaintiffs and our national discourse, the Court refers to KKG as a "sorority."}
Plaintiffs, upset by the fact that Ms. Langford is transgender, asked this Court to void her admission, find that the President of Kappa Kappa Gamma (KKG) violated her fiduciary obligations to the sorority, and prevent other transgender women from joining the sorority nationwide. We dismissed the complaint without prejudice in August of 2023, holding, inter alia, that KKG's freedom of expressive association allows it to interpret the word "woman" in its bylaws however it wishes.
In June of 2024, Plaintiffs' appeal to the Tenth Circuit was also dismissed, on the grounds that our dismissal without prejudice was not a final judgment because we implicitly gave Plaintiffs leave to amend.
The Tenth Circuit clarified:
This court has endorsed a process for appealing an otherwise non-final dismissal of a complaint, explaining that "where a district court dismisses but grants leave to amend, the plaintiff may notify the district court of his or her decision to stand on the original complaint and, once a final order or judgment is entered, appeal the grounds for dismissal." Because Appellants did not avail themselves of this process, we cannot conclude that this court has jurisdiction over this matter. In the district court, Appellants may stand on their existing complaint and seek a dismissal with prejudice so that they may perfect an appeal, or they may amend the complaint and pursue further proceedings in the district court.
Despite these instructions, Plaintiffs have taken no action: more than nine months after the Tenth Circuit issued its decision, they have neither amended their complaint nor notified us of their decision to "stand on the original complaint," which would allow them to receive a final judgment that could be appealed.
Defendants, hoping for some form of resolution, have petitioned this Court to set a deadline for Plaintiffs to amend their complaint….
Let us be the first to acknowledge that this case has ended up in a rather confusing procedural Neverland. To summarize, the Tenth Circuit determined that our dismissal was not a final judgment because we intended for Plaintiffs to perfect their complaint. Plaintiffs, however, have not done so; nor have they decided to stand on their original complaint and appeal it. Consequently, the case remains in a Peter Pan-esque state of immaturity, preventing any court from adjudicating on the merits….
After discussing several different rules of civil procedure, the court concluded that defendants' motion should be treated as a Fed. R. Civ. P. 59(e) motion "to alter or amend a judgment," which in this context can be used as "a motion to impose a deadline":
Generally speaking, Rule 59 motions may be granted on four grounds: the correction of manifest errors of law or fact, the discovery of new evidence, the prevention of manifest injustice, or a change in controlling law. The present motion logically falls into the third option: the prevention of manifest injustice. As the Defendants argue, "The Court should not permit Plaintiffs to hold this case in abeyance while allies who are also Kappa shareholders assert identical shareholder derivative claims against Kappa Fraternity Council members in other proceedings." …
[W]e are also closing in on two years post-dismissal, and the non-final nature of our order could … allow Plaintiffs to bypass Wyoming's statute of limitations for contract claims and indefinitely extend their timeline to file this claim. [A Tenth Circuit precedent] indirectly … suggested a Rule 59(e) motion by defendants would have been successful there; we therefore see no reason why it should not also be successful here.
