On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 09-cv-02246) District Judge: Honorable J. Curtis Joyner
The opinion of the court was delivered by: Garth, Circuit Judge.
Before: SLOVITER, VANASKIE and GARTH, Circuit Judges.
Plaintiff Alan Macfarlan's appeal requires us to review the application of judicial estoppel to his complaint. The District Court judge denied Macfarlan relief as to all counts of his complaint. Primary among the court's rulings was the grant of summary judgment to Macfarlan's former employer, Ivy Hill SNF, LLC ("Ivy Hill") based upon judicial estoppel. We will affirm.
Macfarlan's notice of appeal states that he was appealing only ". . . from the Final Judgment and Order entered on May 12, 2011 denying Plaintiff's Motion for Reconsideration of the District Court's Granting Summary Judgment to Defendant." That motion pertained only to his Count 1 claim under the Family and Medical Leave Act ("FMLA"). Macfarlan also seeks our relief based upon other Acts which refer to his disability and which were the subject of Counts 2-4 of his amended complaint. The main challenge that Macfarlan makes, however, is to the District Court's application of judicial estoppel. We first dispose of two aspects of his appeal which have come to our attention. Ivy Hill raised no objection to either the form of order entered by the District Court or to the limited nature of Macfarlan's Notice of Appeal.
a. The District Court's order
On July 28, 2010, the District Court granted summary judgment to Ivy Hill on Counts 2-4 of Macfarlan's amended complaint and on his FMLA retaliation claim, which was part of Count 1. Ivy Hill thereafter filed a motion for reconsideration as to Macfarlan's remaining Count 1 FMLA claim.
In its November 9, 2010 order granting Ivy Hill's motion for reconsideration and entering summary judgment for Ivy Hill, the District Court, among other rulings, granted the defendant, Ivy Hill, summary judgment on Macfarlan's remaining claim based on judicial estoppel, and therefore denied relief to Macfarlan on his entire Count 1 FMLA claim. In the same order, the District Court then ruled that "Count I of Plaintiff's Amended Complaint is DISMISSED."
When summary judgment is granted to the prevailing party, it is inappropriate and erroneous to dismiss the very complaint that gave rise to the summary judgment order. While no substantial right of Macfarlan was affected by the form of the District Court's order, nonetheless good practice dictates that the complaint on which judgment is entered cannot and should not be "dismissed." Accordingly, Macfarlan not having been prejudiced by the form of the District Court's order, we now disregard the District Court's order of dismissal and review only the summary judgment disposition, which is the gravamen of Macfarlan's appeal.
Macfarlan filed a Notice of Appeal only "from the final judgment and order entered on May 12, 2011 denying Plaintiff's motion for reconsideration of the District Court's order granting summary judgment to Defendant." In normal course, we would confine our review to the one issue appealed, i.e. reconsideration of the District Court's order that granted summary judgment to Ivy Hill for alleged violation of the FMLA. However, while Ivy Hill, as noted, did not object to our consideration of the other counts in Macfarlan's amended complaint, and indeed, addressed them in its brief, we sua sponte have the obligation of considering and confining an appellant to the issue which he has chosen to appeal. See Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (1977) ("When an appeal is taken from a specified judgment only or from a part of a specified judgment, the ...