Second Circuit Declines to Take Up Alternate Basis for Affirming Judgment, Remanding to Hear More from the DCT on the Issue

Per Fisher v. JPMorgan Chase & Co., Slip Copy, 2008 WL 5381269 (2d Cir. Dec. 24, 2008):

The defendants nonetheless ask that we affirm the judgment on alternative legal grounds that they presented to the district court in their application for summary judgment, but which the district court did not address in the order which is the basis for this appeal. We have the ability to affirm on grounds different from those relied upon by the district court where we find it appropriate to do so. See, e.g., Adirondack Transit Lines, Inc. v. United Transp. Union, Local 1582, 305 F.3d 82, 88 (2d Cir.2002).

In this case, however, the district court explicitly rejected the defendants' arguments in this regard in an oral opinion denying their earlier motion to dismiss, ruling that most of the arguments were not amenable to judgment on the pleadings. There being no final judgment at that time, the defendants could not seek our review of that order. They invite us now, in effect, to do just that by deciding in the first instance whether the litigation should be terminated in their favor “on the pleadings.”

We decline to do so. First, because the district court likely did not anticipate appellate review of its decision declining to dismiss, the oral decision may not reflect the court's entire consideration of the issues. Second, the district court's ruling occurred before the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which may have altered the applicable standard for the sufficiency of the pleadings here. Third, even though a decision on this issue may ultimately be reviewable by us de novo, we will likely benefit from the district court's further attention to it, and, if it deems it necessary or advisable, further discovery. See Beckford v. Portuondo, 234 F.3d 128 (2d Cir.2000) (per curiam) (court of appeals benefits from a complete and comprehensive decision by a district court granting a motion for summary judgment even though our standard of review is de novo ).