GILLPATRICK v. Michele Capps, in her official capacity as Warden of the Nebraska State Penitentiary; Angela Folts-Oberle, in her official capacity, Defendants - Appellants (2021)

United States Court of Appeals, Eighth Circuit.2021-05-19No. No. 19-2871

Summary · law.co

Holding. The district court's merits judgment is vacated, and the case is remanded for further proceedings.

One of two plaintiffs in this case died while the appeal was pending, which rendered the underlying dispute moot. The plaintiffs had sought the right to marry, but with one plaintiff deceased, that relief could no longer be granted. Under established appellate practice, when a case becomes moot through circumstances beyond the parties' control, vacatur of the judgment on the merits is appropriate.

The appellants failed to present meaningful arguments challenging a separate judgment awarding attorneys' fees in their initial appellate brief, which normally constitutes waiver of that issue. However, because the court subsequently requested additional briefing on how the mootness affected the fees judgment, the court determined it could not properly address the fees question without adequate factual findings from the district court regarding prevailing party status, the parties' conduct after the merits judgment, and the appropriate fee amount.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether mootness caused by a plaintiff's death renders an appeal moot
Effect of mootness on a separate attorneys' fees judgment
Waiver of appellate arguments through insufficient briefing

Procedural posture

This is an appeal of a district court judgment on the merits and a separate attorneys' fees judgment, which became moot upon one plaintiff's death during the pendency of the appeal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

Paul M. Gillpatrick filed a suggestion of death for his co-plaintiff, Niccole A. Wetherell. See Fed. R. App. P. 43. Because they can no longer marry, the appeal of the merits judgment is moot. See Gillpatrick v. Frakes, 2019 WL 7037367, at *8 (D. Neb. June 7, 2019). The “happenstance” of Wetherells death moots the appeal of the merits judgment, so vacatur of it is appropriate. See U.S. Bancorp Mortg. Co. v. Bonner Mall Pship, 513 U.S. 18, 23, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). See generally Arizonans for Official English v. Arizona, 520 U.S. 43, 71, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (“Vacatur is in order when mootness occurs through happenstance—circumstances not attributable to the parties ․”); Robinson v. Pfizer, Inc., 855 F.3d 893, 898 (8th Cir. 2017) (“Once a case pending appeal becomes moot, federal appellate courts may dispose of the case as justice may require.”); 28 U.S.C. § 2106.

In their initial brief, the appellants did not make any “meaningful argument” against the separate attorneys fees judgment. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004) (“Since there was no meaningful argument on this claim in his opening brief, it is waived.”). See also Cox v. Mortg. Elec. Registration Sys., Inc., 685 F.3d 663, 674 (8th Cir. 2012) (stating that appellants “waived [an] issue by failing to provide a meaningful explanation of the argument and citation to relevant authority in their opening brief”). Normally, this failure waives any attack on that judgment. See Sipe v. Workhouse Custom Chassis, LLC, 572 F.3d 525, 528 n.2 (8th Cir. 2009) (appellant waived argument by failing to include it in his appellate brief even though he listed it in his notice of appeal), citing Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008).

After the case was submitted for decision, this court requested briefing on “the effect of the suggestion of death.” In their responding briefs, the parties dispute whether the merits judgments mootness affects the district courts attorneys fees judgment. See Gillpatrick v. Frakes, 2019 WL 3944059, at *5 (D. Neb. Aug. 21, 2019). In the absence of appropriate findings of fact—including prevailing party status, any acts by the parties between the entry of the merits judgment and its stay order, and the amount of attorneys fees that should be awarded—this court will not address the attorneys fees judgment at this time.

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The district courts merits judgment is vacated, and the case remanded for further proceedings consistent with this opinion.

BENTON, Circuit Judge.