United States Court of Appeals 

For the First Circuit 

No. 16-1466 

DALE DORAN, individually and on behalf of all persons similarly 

situated, 

Plaintiff, Appellant, 

MICHAEL J. COAKLEY, individually and on behalf of all persons 

similarly situated; MARK MORIARITY, individually and on behalf 

of all persons similarly situated, 

Plaintiffs, 

v. 

J. P. NOONAN TRANSPORTATION, INC.; CLANCY TRANSPORTATION, INC.; 

J. PETER NOONAN, SR.; J. PETER NOONAN, JR.; CHRISTOPHER NOONAN; 

PAUL NOONAN, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. William G. Young, U.S. District Judge] 

Before 

Lynch, Baldock,* and Kayatta, 

Circuit Judges. 

 David A. Cohen, with whom The Basil Law Group, P.C., John A. 

Kiernan, Michael D. Chefitz, and Bonner, Kiernan, Trebach & 

Crociata, LLP were on brief, for appellant. 

 Geoffrey P. Wermuth, with whom Kathryn M. Murphy and Murphy, 

 * Of the Tenth Circuit, sitting by designation. 
Hesse, Toomey & Lehane, LLP were on brief, for appellees. 

April 5, 2017 
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KAYATTA, Circuit Judge. The district court in this case 

entered an interlocutory order dismissing most but not all of 

plaintiffs' claims. At plaintiffs' urging, the district court 

then remanded the case to the state court from which it was 

removed. One of the plaintiffs thereafter filed a notice appealing 

the remand order, followed by a brief devoted to challenging the 

interlocutory order that dismissed most of his claims. For the 

following reasons, our rules and precedent require that we deem 

plaintiff's right to embark on this appellate foray waived. 

I. 

We recite the facts of this case briefly, drawing 

primarily from the undisputed facts contained in the record and 

plaintiff's opening brief. 

Plaintiff Dale Doran is a professional truck driver who 

was previously employed by defendant J. P. Noonan Transportation, 

Inc. ("JPN").1 JPN is a Massachusetts-based corporation and 

federally authorized motor carrier that transports petroleum 

products such as gasoline, diesel fuel, and home heating oil 

throughout the northeastern United States. During his at-will 

 1 The record reflects a dispute as to whether Doran's employer 

is JPN or codefendant Clancy Transportation, Inc. Nevertheless, 

because plaintiff's brief states that he was employed by JPN, and 

because defendants state in their brief that "[f]or purposes of 

this appeal, [they] are satisfied with the Plaintiff's Statement 

of the Case/Factual Background," we describe JPN as Doran's 

employer. 
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employment for JPN, Doran worked out of JPN's terminal in Hooksett, 

New Hampshire. Doran typically drove fourteen hours per day 

without taking any paid breaks. Doran claims that under the terms 

of an oral contract with JPN, he was to be paid 30% of the "gross 

revenue" earned by the truck each day. From 2009 to 2014, JPN 

charged a "fuel surcharge" to many of its customers to account for 

"rapidly fluctuating changes" in the cost of the fuel used by the 

delivery trucks. Doran delivered loads for JPN for which JPN 

charged the fuel surcharge. He did not receive any portion of 

these surcharges. 

II.

On June 19, 2015, Doran and two other named plaintiffs 

filed a putative class action suit against defendants in 

Massachusetts Superior Court, raising a variety of statutory and 

common law claims. Defendants successfully sought removal of the 

suit to the United States District Court for the District of 

Massachusetts pursuant to the removal provision of the Class Action 

Fairness Act ("CAFA"), 28 U.S.C. § 1453. 

On February 26, 2016, the district court granted without 

written explanation defendants' motion for summary judgment as to 

all of plaintiffs' statutory claims and all but one of plaintiffs' 

common law claims. Shortly thereafter, the district court issued 

an order in which it determined that "the jurisdictional amount is 

measured as of the time of removal, and that '[e]vents subsequent 
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to removal that reduce the amount in controversy do not divest a 

federal court of CAFA jurisdiction.'" Accordingly, the court 

concluded that it continued to retain "original jurisdiction over 

this action" even though its grant of partial summary judgment 

reduced the amount in controversy below $5,000,000. The court 

went on to conduct a trial on Doran's remaining common law claim, 

which resulted in a jury verdict for JPN. 

On March 24, 2016, the district court held a status 

conference. Noting that it had a "jurisdictional" question, the 

court stated that it "had little trouble with how the Court's 

jurisdiction under the Class Action Fairness Act played out against 

the original scope of [plaintiffs'] complaint because it's a 

putative class action and [plaintiffs] had all those [statutory] 

claims . . . for which [they] could get attorneys fees and the 

like." The court then observed that "most of [plaintiffs' claims] 

went by the boards," but that plaintiffs "have a right to appeal."

The court proceeded to reiterate that it had "no doubt" 

not only that it "had jurisdiction over the complaint as originally 

crafted," but also that it "had supplementary jurisdiction to take 

the next step and indeed [it] ha[s] supplementary jurisdiction to 

follow this thing through to conclusion." However, the court 

expressed concern insofar as the court was "going to have to have 

a run-up to a trial" and it was "not so sure [it] ha[s] 

jurisdiction" to do so. 
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After confirming that the case originated in 

Massachusetts Superior Court, the court suggested that "maybe [it] 

should send [the case] back." In response, counsel for Doran and 

the other plaintiffs announced that they "agree[d]" with the 

court's suggestion of a remand, because "even though the Court had 

original jurisdiction at the time the case was removed," the 

court's summary judgment ruling divested it of "original 

jurisdiction." Defendants' counsel disputed that the court had 

lost jurisdiction, but nevertheless concluded that, because 

plaintiffs had not moved for class certification, he was "not sure 

there's anything [he] could say that matters at this point 

frankly." 

Acknowledging that "there [wa]s no motion for class 

certification before the Court," the district court announced that 

it would remand the case to state court, as plaintiffs said it 

should. An Order of Remand issued on March 29, 2016. Twenty-nine 

days later, Doran filed a Notice of Appeal in which he stated the 

following: "Notice is hereby given that Dale Doran . . . hereby 

appeals to the United States Court of Appeals for the First Circuit 

from an Order of Remand entered in this action on March 29, 2016." 

III.

Doran asks us to review the summary judgment order issued 

by the district court before it remanded the remaining claims to 

state court. His notice of appeal, however, does not mention or 
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even hint at any attempt to appeal that order. The Federal Rules 

of Appellate Procedure state that a notice of appeal "must . . . 

designate the judgment, order or part thereof being appealed." 

Fed. R. App. P. 3(c)(1)(B). The case law, in turn, states that we 

have no basis to reverse an order not so designated. See, e.g., 

Santos-Santos v. Torres-Centeno, 842 F.3d 163, 169 (1st Cir. 2016). 

Doran's briefs on appeal describe the order of remand 

designated in his notice as a "final judgment." Although Doran 

does not say so, we might infer from this description the beginning 

of an effort to invoke this circuit's practice of reading a notice 

of appeal from the "final judgment" as effectively designating all 

interlocutory rulings that "merge in the judgment." United States 

ex rel. Booker v. Pfizer, Inc., 847 F.3d 52, 55 (1st Cir. 2017) 

(quoting John's Insulation, Inc. v. L. Addison & Assocs., Inc., 

156 F.3d 101, 105 (1st Cir. 1998)). But, if the order of remand 

is a final judgment, then it is a final judgment to which Doran 

affirmatively acquiesced. 

Though we provide litigants an escape hatch from 

judgments to which they consent, it is a narrow one: if a party 

consents to a final judgment in order to appeal prior orders 

leading up to that judgment, the party may appeal those orders so 

long as it reserves the right to do so. Robb Evans & Assocs., LLC 

v. United States, Nos. 15-2540, 15-2552, 2017 WL 836055, at *3 

(1st Cir. March 3, 2017) (quoting BIW Deceived v. Local S6, Indus. 
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Union of Marine & Shipbuilding Workers, 132 F.3d 824, 828 (1st 

Cir. 1997)). And while an "unequivocal" statement of an intent to 

appeal may serve as sufficient evidence of such a reservation, see 

BIW Deceived, 132 F.3d at 828, Doran never voiced any such 

intention, apparently because--as counsel explained at oral 

argument before this court--the decision to appeal had not yet 

been made when remand was sought.

The foregoing exhausts our survey of the possible 

indulgences that a panel of judges might arguably grant under 

current law on this record. Even if we were to treat the remand 

order as the equivalent of a "final judgment," then it would be a 

judgment to which Doran consented without clearly reserving the 

right to appeal any ruling that may have merged into that judgment. 

IV. 

We dismiss the appeal, without affirming or reversing 

the district court's summary judgment ruling.