                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0429n.06

                                        Case No. 17-4306

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                  FILED
                                                                            Aug 21, 2018
WELLS FARGO BANK, N.A.,                               )
                                                                        DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )        ON APPEAL FROM THE
v.                                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE NORTHERN
ALLSTATE INSURANCE COMPANY,                           )        DISTRICT OF OHIO
                                                      )
       Defendant-Appellant.                           )
                                                                                    OPINION


BEFORE: SUTTON, McKEAGUE, and KETHLEDGE, Circuit Judges.

       McKEAGUE, Circuit Judge. Wells Fargo Bank owned an insurance policy on an

abandoned home that an arsonist set ablaze. Allstate Insurance Company refused to indemnify

Wells Fargo, relying on a policy exclusion for damage caused by “vandalism or malicious

mischief” after the property has been vacant for 30 or more days. Wells Fargo sued, arguing that

other policy provisions confirm that fire damage is considered distinct from vandalism or

malicious mischief. The district court agreed with Wells Fargo and entered summary judgment in

its favor. Allstate appealed—but prematurely, it turns out.

       While the district court’s summary judgment order determined that Allstate was on the

hook for the arson damage under the terms of the policy, the district court failed to address other

issues that remained in the case, most prominently Wells Fargo’s demand for breach-of-contract
Case No. 17-4306, Wells Fargo Bank, N.A. v. Allstate Insurance Company


damages. That means the district court’s decision did not constitute a final judgment under 28

U.S.C. § 1291, and so we must dismiss this appeal for lack of jurisdiction.

         A brief review of how we got here is in order. The district court styled its judgment a final

one under § 1291. And neither party to the case initially questioned the finality of the decision

below. Section 1291’s finality requirement, however, goes to this court’s jurisdiction, meaning

we must decide for ourselves whether the district court fully and finally resolved the dispute in its

summary judgment order. Daleure v. Commonwealth of Kentucky, 269 F.3d 540, 543 (6th Cir.

2001). Doubtful that the order did so—since it resolved only the liability, and not the damages,

question—we asked the parties to provide their take on the matter through supplemental briefs.

         Both parties in their briefing conceded that the district court’s decision was not final. And

though they offer some arguments and authority suggesting we can overlook this technical defect,

we think doing so would risk piecemeal appeals in this case and would promote a similar practice

in future cases.1 We may answer the liability question today, only to review the damages issue

tomorrow. That runs counter to both the letter and spirit of § 1291. See Bd. of Trustees of Plumber,

Pipe Fitters & Mech. Equip. Serv., Local Union No. 392 v. Humbert, 884 F.3d 624, 626 (6th Cir.

2018) (stating that “a stipulated order that leaves open the possibility of piecemeal appeals is not

final” (citation and quotation marks omitted)); see also Microsoft Corp. v. Baker, 137 S. Ct. 1702,

1712 (2017) (stating that § 1291 “preserves the proper balance between trial and appellate courts,

minimizes the harassment and delay that would result from repeated interlocutory appeals, and

promotes the efficient administration of justice.”).




1
  Both Wells Fargo and Allstate rely primarily on Pittman ex rel. Sykes v. Franklin, 282 F. App’x 418 (6th Cir. 2008),
for the proposition that this court can review a district court decision that is not final and was not certified as an
interlocutory appeal. But Pittman (beyond being unpublished) involved dramatically different facts and serves as a
poor guide in this case. Perhaps most importantly, the district court decision appealed from in Pittman fully resolved
the claim against one of the defendants in a multi-defendant suit. Id. at 431. Not so here.

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Case No. 17-4306, Wells Fargo Bank, N.A. v. Allstate Insurance Company


       The parties admit the possibility of a successive appeal, yet assure us that we can keep the

case since any remaining appeal would concern only the extent of damages. But there is no special

exception to an appellate court’s aversion to multiple appeals where the second appeal will be

limited to damages. Indeed, we recently held just the opposite. Humbert, 884 F.3d at 626 (“The

point of the finality requirement . . . is to make the parties bring all of their issues—liability,

damages, and whatever else they choose to litigate—in a single appeal.”). True, this rule is

sometimes relaxed when the damages determination is all but foreordained and the district court

need only do a bit of arithmetic. See, e.g., Griffin v. Michigan Dep’t of Corr., 5 F.3d 186, 190 (6th

Cir. 1993). This, however, is not such a case—not if we take each party at their word. See Wells

Fargo’s Supp. Br. at 3 (discussing need for evidentiary hearing on the amount of damages);

Allstate’s Supp. Br. at 4 (acknowledging that decision in Wells Fargo’s favor “will require the

district court to conduct a damages proceeding”). Wells Fargo has demanded an indeterminate

amount of damages from Allstate, and the district court has to settle on an amount before we will

hear an appeal. See Humbert, 884 F.3d at 626.

       We dismiss the appeal for lack of jurisdiction.




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