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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Section 15-703

Citation
Section 15-703
Parent Document
Landise v. Mauro, 927 A.2d 1026 (2007)
Jurisdiction
DC (municipal)
Effective Date
2007-05-31

Full Text

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*1032The test for whether an interlocutory order is immediately appealable as an injunction is set forth in Carson v. Am. Brands, Inc., 450 U.S. 79, 85, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), and it requires a litigant requesting appeal to show: (1) that the order has the practical effect of an injunction; and (2) that the order might have “serious, perhaps irreparable eonsequence[s].” As demonstrated in our discussion of the third Cohen factor, supra, this is not a situation where Landise will suffer irreparable consequences. However, we need not reach the Carson test because this court has held that prejudgment security devices “generally have been expressly excluded from the definition of an injunction for appeal purposes and thus are subject to appeal only to the extent they fall within the Cohen collateral order doctrine.” McQueen, 547 A.2d at 177 (holding that protective orders in the Landlord and Tenant Branch are distinguishable from ordinary prejudgment security devices because protective orders are not statutory creations and because a tenant who fails to pay a protective order may suffer the irreparable consequence of losing possession of the property). Cf. Cohen v. Board of Trs. of the Univ. of Med. & Dentistry of N.J., 867 F.2d 1455, 1464 (3d Cir.1989) (remarking that “orders attaching security for a judgment ultimately to be rendered have been held not to fall under [28 U.S.C.A. § ] 1292(a)(1), even though such orders have a significant impact on the parties whose property is affected”); Am. Mortgage Corp. v. First Nat’l Mortgage Co., 345 F.2d 527, 528 (7th Cir.1965) (holding that “[t]he distinction between attachments and injunctions has been so long recognized that we are convinced that Congress would have provided for interlocutory appeals in cases such as this had it deemed such appeals desirable”); Bogosian v. Woloohojian Realty Corp., 923 F.2d 898, 901 (1st Cir.1991) (explaining that “[f]or historical reasons, court ordered ‘attachments,’ even where coercive and designed to protect ultimate relief, are typically considered to be ‘legal,’ not ‘equitable,’ in nature, and therefore are not ‘injunctions’ for [28 U.S.C.A.] § 1292(a)(1) purposes”). For these reasons we conclude that the order is not appealable as an injunction.