Last month, McKool Smith settled a malpractice claim brought against it by former NFL football players and asked the Ninth Circuit to remand the players' appeal to district court.
There's just one problem: McKool is joined at the hip with Manatt Phelps & Phillips in the appeal, which was argued a few months ago. On Monday, the appellate court issued a brief order saying it could not dismiss the part of the appeal dealing with McKool while retaining the part with Manatt, which hasn't settled.
"We have jurisdiction to review final judgments and, absent a Rule 54(b) severance, no appeal of the district court’s judgment may be taken by one party while the district court is busy working on another party’s case," states the order, filed by Chief Judge Alex Kozinski and Judges N. Randy Smith and Morgan Christen.
Nonetheless, the judges added, sounding just slightly spurned, "if plaintiffs and McKool prefer to be
bound by their settlement rather than our decision regarding the merits of the appeal, we could decide only the claims against Manatt and remand the case so that the district court can effectuate the settlement between McKool and plaintiffs.
"We will enter such a split disposition only if unequivocally requested by plaintiffs and
McKool before we render our decision," the judges added.
They gave McKool one week to make such a request and one more week for the plaintiffs to file any opposition.