Marquez v. Silver

23-437-cv
Marquez v. Silver
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2023
No. 23-437-cv
ALEXIS M ARQUEZ ,
Plaintiff-Appellant,
v.
G EORGE S ILVER , INDIVIDUALLY , LAWRENCE MARKS , INDIVIDUALLY ,
JOHN MC C ONNELL, INDIVIDUALLY , LAUREN D ES OLE, INDIVIDUALLY ,
LISA EVANS , INDIVIDUALLY ,
Defendants-Appellees.*
On Appeal from the United States District Court
for the Southern District of New York
A RGUED: MARCH 5, 2024
D ECIDED: MARCH 27, 2024
Before: WALKER , N ARDINI , and MENASHI , Circuit Judges.
We dismiss this appeal for lack of jurisdiction. The merger rule,
pursuant to which an interlocutory order merges into the final
* The Clerk of Court is directed to amend the caption as set forth above.

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judgment, does not apply when a district court enters a dismissal as
a sanction. If the plaintiff succeeds in challenging the sanction
dismissal, then the merger rule would apply to any final judgment on
the merits that results from further proceedings.
ALEXIS MARQUEZ , pro se, for Plaintiff-Appellant.
ANTHONY R. RADUAZO, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General, Judith N.
Vale, Deputy Solicitor General, on the brief), for Letitia
James, Attorney General of the State of New York, for
Defendants-Appellees.
MENASHI , Circuit Judge:
Plaintiff-Appellant Alexis Marquez, an attorney proceeding
pro se, alleged that an Acting New York State Supreme Court Justice
harassed her and subjected her to inappropriate behavior during her
service as his court attorney. When she reported the misconduct,
court officers allegedly defamed her and retaliated against her. On
appeal, Marquez challenges two interlocutory rulings that dismissed
the complaint as to one defendant and denied reconsideration. The
district court, however, entered a final judgment of dismissal as a
sanction for Marquez’s failure to comply with discovery orders.
Marquez does not challenge the sanction dismissal in this appeal.
We lack jurisdiction to consider Marquez’s challenge to the
interlocutory orders because it is not an appeal from a “final
decision[] of the district court[].” 28 U.S.C. § 1291. The merger rule,
pursuant to which an interlocutory order merges into the final
judgment, does not apply when a district court enters a final

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judgment of dismissal as a sanction. If Marquez succeeds in
challenging the sanction dismissal and restoring the proceedings in
the district court, then she will be able to challenge the interlocutory
orders as part of any appeal from a final judgment on the merits. At
this stage, however, we dismiss the appeal without prejudice for lack
of jurisdiction.
BACKGROUND
In the course of this litigation, the district court granted in part
and denied in part a motion to dismiss the operative amended
complaint. The district court allowed some claims to proceed. But the
district court dismissed Marquez’s Title VII claims against the State
of New York because the district court determined that Marquez had
“not adequately pleaded that New York State is her employer.”
Marquez v. Hoffman, No. 18-CV-7315, 2021 WL 1226981, at *11
(S.D.N.Y. Mar. 31, 2021). The district court declined to permit further
amendment of the complaint because Marquez had “already been
permitted to amend her pleadings” and because the proposed
amendment “would not be sufficient to establish an employment
relationship” and so “would be futile.” Id. at *12. Marquez moved for
reconsideration and again sought leave to amend, which the district
court denied. See Marquez v. Hoffman, No. 18-CV-7315, 2021 WL
6133972, at *1 (S.D.N.Y. Dec. 29, 2021).
The litigation proceeded with respect to Marquez’s remaining
claims until the district court entered a final judgment dismissing the
case in February 2023. That dismissal, however, did not involve a final
decision on the merits. Instead, the presiding magistrate judge
recommended dismissing the case as a sanction under Federal Rules
of Civil Procedure 16(f), 37(b), and 41(b) because Marquez had
purportedly failed to comply with discovery obligations and related

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orders. See Marquez v. Hoffman, No. 18-CV-7315, 2022 WL 4076016
(S.D.N.Y. Sept. 6, 2022). Marquez did not timely object to the
recommendation, despite receiving extensions of time to do so. The
district court reviewed the recommendation for clear error, found
none, and dismissed the case as a sanction. See Marquez v. Silver,
No. 18-CV-7315, 2023 WL 2088522 (S.D.N.Y. Feb. 17, 2023),
reconsideration denied, No. 18-CV-07315, 2024 WL 1056285 (S.D.N.Y.
Mar. 4, 2024).
Marquez then filed this appeal. In her appellate brief, Marquez
sought review of only the interlocutory orders that dismissed New
York State as a defendant and denied reconsideration. The defendants
defended those interlocutory orders on the merits.
In every appeal, however, “the first and fundamental question
is that of jurisdiction, first, of this court, and then of the court from
which the record comes. This question the court is bound to ask and
answer for itself, even when not otherwise suggested.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting Great S. Fire
Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). Accordingly, we
directed the parties to address in supplemental briefing whether we
have appellate jurisdiction to review the interlocutory orders that
Marquez challenges here. See Order, Marquez v. Silver, No. 23-437 (2d
Cir. Jan. 23, 2024), ECF No. 54. The defendants now contend that this
appeal must be dismissed for lack of appellate jurisdiction.
While this appeal was pending, Marquez filed a motion before
the district court pursuant to Federal Rule of Civil Procedure 60(b)
seeking reconsideration of the order dismissing her case as a sanction.
Because there was a pending appeal, she sought an indicative ruling
on her Rule 60(b) motion pursuant to Federal Rule of Civil Procedure
62.1. The district court entered an indicative ruling stating that it

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“would not grant the motion for reconsideration.” Opinion and Order
at 3, Marquez v. Silver, No. 18-CV-7315 (S.D.N.Y. Mar. 4, 2024), ECF
No. 462. The district court explained that “[b]y failing to timely object
under Federal Rule of Civil Procedure 72, the plaintiff waived
objections to the magistrate judge’s report and recommendation”
and, “[i]n any event, the plaintiff’s arguments are without merit”
because “[t]here is no error in the magistrate judge’s well-reasoned
opinion.” Id. Marquez has separately appealed that ruling, which is
not before us.
DISCUSSION
We lack appellate jurisdiction to consider Marquez’s challenge
to the interlocutory orders and therefore must dismiss this appeal.
“The final judgment rule, embodied in 28 U.S.C. § 1291, requires ‘that
a party must ordinarily raise all claims of error in a single appeal
following final judgment on the merits.’” In re “Agent Orange" Prod.
Liab. Litig., 745 F.2d 161, 163 (2d Cir. 1984) (quoting Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)). Once a final judgment
has been entered, interlocutory orders “typically merge with the
[final] judgment for purposes of appellate review.” Amara v. Cigna
Corp., 53 F.4th 241, 248 (2d Cir. 2022) (quoting Fielding v. Tollaksen, 510
F.3d 175, 179 (2d. Cir. 2007)). In this way, “a party is entitled to a single
appeal, to be deferred until final judgment has been entered, in which
claims of district court error at any stage of the litigation may be
ventilated.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996)
(quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868
(1994)).
Interlocutory orders do not merge, however, when a final
judgment of dismissal is imposed as a sanction for litigation
misconduct, such as a failure to prosecute. We have explained that “if

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a litigant could refuse to proceed whenever a trial judge ruled against
him, wait for the court to enter a dismissal for failure to prosecute,
and then obtain review of the judge’s interlocutory decision, the
policy against piecemeal litigation and review would be severely
weakened. This procedural technique would in effect provide a
means to avoid the finality rule embodied in 28 U.S.C. § 1291.”
Shannon v. Gen. Elec. Co., 186 F.3d 186, 192 (2d Cir. 1999) (alterations
omitted) (quoting Palmieri v. Defaria, 88 F.3d 136, 139 (2d Cir. 1996)).
When an interlocutory order “does not merge with the final
judgment,” we “lack jurisdiction” to consider an appeal that
challenges it. Id. at 193.1
I
In the circumstances of this case, the challenged interlocutory
orders do not merge into the final judgment. The district court
dismissed the lawsuit as a sanction for Marquez’s purported
noncompliance with discovery obligations and court orders.
Entertaining an appeal of the district court’s earlier interlocutory
orders would not only allow Marquez to evade the judgment of the
sanction dismissal—which at this point has not been successfully
challenged—but would also involve this court in the adjudication of
issues that may have no effect on the ultimate disposition of this case.
1 The federal appellate courts generally “apply the merger doctrine
differently when the appealed final judgment is an involuntary dismissal
as a sanction for [the] plaintiff’s failure to prosecute or failure to comply
with court orders, typically declining to address interlocutory rulings,” but
“their reasoning varies. Some courts hold it is a matter of jurisdiction;
others, a matter of discretion; and some are unclear.” Edge v. TLW Energy
Servs., LLC, No. 22-50288, 2023 WL 3267847, at *4 (5th Cir. May 5, 2023)
(citing cases). Our court has held that we lack jurisdiction under these
circumstances. See Shannon, 186 F.3d at 193.

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If the proper ultimate disposition of this case is dismissal of the
lawsuit as a sanction, then the earlier decisions of the district court
regarding interlocutory matters are immaterial. Cf. Abele v. Markle, 452
F.2d 1121, 1124 (2d Cir. 1971) (explaining that “the persons seeking
relief” must have “a sufficient personal stake in the outcome to assure
that the court will be called upon to resolve real issues between
genuine adversaries rather than merely to give advisory opinions
with respect to abstract or theoretical questions”). We conclude that
interlocutory orders do not merge into a final judgment of a sanction
dismissal and that we lack appellate jurisdiction to entertain a
challenge to the interlocutory orders unless and until there is a final
judgment on the merits.
Our published opinions have applied this rule to dismissals as
a sanction for failure to prosecute, but in summary orders we have
applied the same rule to dismissals as a sanction for noncompliance
with discovery orders. See, e.g., Pimentel v. Delta Air Lines, Inc.,
818 F. App’x 100, 102 (2d Cir. 2020); Lamont v. Edwards, 690 F. App’x
61, 62-63 (2d Cir. 2017). We follow that approach here.
In her supplemental brief, Marquez argues that the rule should
be different because a discovery sanction, unlike a sanction for failure
to prosecute, does not necessarily suggest that the sanctioned litigant
is engaging in strategic behavior to avoid the final judgment rule. We
disagree. A sanction for failure to prosecute does not necessarily
suggest that the litigant is engaging in strategic behavior either. But
the risk of strategic behavior—and of involving the appellate court in
abstract controversies—is the same with respect to both types of
sanction dismissals.
Marquez also contends that her appeal should proceed because
she has challenged the sanction dismissal in her Rule 60(b) motion

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before the district court. But an interlocutory order does not merge
into the final judgment of a sanction dismissal regardless of whether
the appellant has challenged the dismissal. See Shannon, 186 F.3d at
193 (considering the appellant’s challenge to the judgment of
dismissal for failure to prosecute). Even if Marquez had successfully
challenged the sanction dismissal, there still would not be a final
judgment on the merits into which the interlocutory orders would
merge. It is the lack of a final judgment on the merits—rather than the
lack of a challenge to the sanction dismissal—that precludes the
exercise of appellate jurisdiction.
II
Although we lack appellate jurisdiction to review the
interlocutory orders at this stage, Marquez “may seek appellate
review of those rulings” if and when “the district court enters an
eventual final judgment” on the merits. Baptiste v. Sommers, 768 F.3d
212, 219 n.2 (2d Cir. 2014). If Marquez succeeds in challenging the
sanction dismissal—either before the district court or on appeal—and
the litigation continues in the district court, she will be able to seek
review of the interlocutory orders as part of an appeal from an
eventual final judgment on the merits.2 In that way, she may obtain
“a single appeal, to be deferred until final judgment has been entered,
in which claims of district court error at any stage of the litigation may
be ventilated.” Quackenbush, 517 U.S. at 712 (quoting Digital Equip.
Corp., 511 U.S. at 868).
2 The defendants acknowledge that Marquez would be able to obtain
review of the interlocutory orders under such circumstances. See Oral
Argument Audio Recording at 25:13.

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CONCLUSION
We dismiss the appeal without prejudice for lack of appellate
jurisdiction.

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