First Things First – Interlocutory Appeals From Pre-Removal Preliminary Injunctions

The First Circuit has scratched my procedural nerd itch with its decision in Concordia Partners, LLC v. Pick, No. 14-1233, a decision in which the underlying facts are truly irrelevant. Concordia sued Pick in the Maine Superior Court and obtained a preliminary injunction against her in the process. Pick then removed the case to federal court and filed a notice of interlocutory appeal.

As the First Circuit pointed out, under 28 U.S.C. § 1292(a)(1), the court’s jurisdiction over appeals from interlocutory orders extends only to “orders of the district court.” Since the order she was appealing from was entered by the Maine Superior Court, Pick relied on 28 U.S.C. § 1450, which provides that “[w]henever any action is removed from a State court to a district court of the United States, … [a]ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force an effect until dissolved or modified by the district court.” In her view, Section 1450 essentially transformed the Maine Superior Court’s injunction into one issued by the U.S. District Court upon the filing of her notice of removal.

The First Circuit, however, was having none of it. It noted that the text of Section 1450 served only to preserve the status quo in a removed case, rather than to convert a state court order into a federal court order. In order to provide the court with the jurisdictional basis to hear Pick’s interlocutory appeal, the Court concluded, the District Court would have had to have entered an order re-affirming, enforcing, dissolving, or modifying the state court injunction – only then would the Court have been presented with an interlocutory order of a federal district court.

In short, when confronted with a state court preliminary injunction issued prior to removal, move the federal court to take some action of its own with respect to that injunction before filing your interlocutory appeal.