Flaherty v. New Jersey, 2011 WL 66990 (App. Div. Jan. 11, 2011). Two months ago, the Appellate Division reminded us, in a case involving a pro se appellant, that an issue not listed in a notice of appeal is not considered to be under appeal. In Flaherty, a case alleging claims under the New Jersey Law Against Discrimination (“LAD”), the Conscientious Employees Protection Act (“CEPA”), and other theories, the plaintiff was not pro se. His case was dismissed by virtue of two different orders. The first order granted a motion to dismiss the LAD claims and others, while the second order granted summary judgment on the CEPA claims.
The plaintiff’s notice of appeal included only the dismissal of his CEPA claim as the basis for appeal. The Appellate Division refused to consider his demand for reversal of the separate dismissal of his LAD claims because the notice of appeal did not list the order that had dismissed the LAD causes of action. The court noted that the Case Information Statement (“CIS”) “serves the same essential purpose as a notice of appeal, that is, it places the adversary on notice of the intended scope of the appeal, and thus, should be read in conjunction with the notice of appeal to determine the propriety of arguments presented by the appellant,” the CIS did not list the order dismissing the LAD claims either.
Appellants have at least two chances to preserve issues for appeal: in the notice of appeal and, as Flaherty indicates, in the CIS. Counsel who fail to make use of either will suffer dismissal of their attempts to appeal issues not listed.