Do you have to timely file an interlocutory appeal?

[stebbinsd]

What is the name of your state (only U.S. law)? 8th Circuit

The title of the question might seem kinda confusing, but let me clarify.

In a real case (not homework), I'm being forced to represent myself pro se because I'm the Defendant and defense attorneys don't work on a contingency basis.

I moved to dismiss for Rule 12(b)(6) failure to state a claim, but the district court denied that motion. No explanation given whatsoever for the denial, but then again, Rule 52(b) explicitly says that he doesn't have to.

If I find it in my best interest, can I wait until the case is over, and then, file an appeal of a final judgment, including that the District Court erred in failing to dismiss the claim?

Or, do I have to file the interlocutory appeal, now, or else I forfeit it?

 

[justalayman]

had you entered a pleading yet?

 

[stebbinsd]

had you entered a pleading yet?

Yes. In fact, I took Rule 12(h)(2)(B) up on its offer and included the motion to dismiss in a motion for a judgment on the pleadings... which can only be filed after pleadings are closed.

 

[justalayman]

did you catch this in 12(b)?

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

 

[stebbinsd]

did you catch this in 12(b)?

Look, I'm not looking for whether or not the denial has merit. That will be for the appellate court to decide.

My question was... can I withhold my appeal of this denial, until the litigation has run its course, or do I have to file the interlocutory appeal right now in order to preserve its appealability?

THAT is all I want to know in this thread!

 

[Proserpina]

Look, I'm not looking for whether or not the denial has merit. That will be for the appellate court to decide.

My question was... can I withhold my appeal of this denial, until the litigation has run its course, or do I have to file the interlocutory appeal right now in order to preserve its appealability?

THAT is all I want to know in this thread!

Why on earth you REPEATEDLY get an attitude with the responders here is just beyond me. Your posting history says much. You've gone potty mouth on people, you've had posts deleted because of this and you've been downright disrespectful when you don't get the answers you want.

I mean seriously - GO PAY AN ATTORNEY.

 

[stebbinsd]

Why on earth you REPEATEDLY get an attitude with the responders here is just beyond me.

I'm not trying to get an attitude. I'm just frusstrated when I can't seem to get a straight answer.

It's like in a cross-examination. When the witness doesn't give straight answers, it frustrates you beyond belief.

The only difference is that, here, I don't have the judge to step in and compel a straight answer.

Your posting history says much.

I'm sorry if you take it that way.

 

[stebbinsd]

Also, when the words were capsed, that wasn't designed to be shouting. I capsed the words for emphasis. It's just that capsing it is easier than putting it in italics.

 

[justalayman]

Look, I'm not looking for whether or not the denial has merit. That will be for the appellate court to decide.

My question was... can I withhold my appeal of this denial, until the litigation has run its course, or do I have to file the interlocutory appeal right now in order to preserve its appealability?

THAT is all I want to know in this thread!

I was pointing out that according to that rule, you MUST make a motion as you have BEFORE pleading.

If that rule applies, you have no basis for an appeal. If that rule applies, you screwed up and didn't file the motion when required. That makes it your fault.

I'll let you be an ass all on your own from here on out.

 

[stebbinsd]

Ok, maybe on this one, but what about the other two cases spoken of in this thread? After all, I can always file a regular appeal, arguing that the trial court made an error of law.

https://forum.freeadvice.com/civil-litigation-46/where-did-i-go-wrong-551918.html

Can I still just wait for the litigation to run its course, and THEN include it in a regular appeal?