The Eleventh Circuit held that claimants can create a final decision by “abandoning” unresolved claims, which stands in some tension with that court’s rule that litigants cannot voluntarily dismiss discrete claims.
October 8, 2023
In Lowery v. Amguard Insurance Co., the Eleventh Circuit allowed an plaintiff to create a final, appealable decision by abandoning an unresolved claim. This should not be remarkable; courts have long allowed parties to abandon unresolved claims—even in the middle of oral argument—to cure defects in appellate jurisdiction. But the decision seems to conflict with the Eleventh Circuit’s rule that litigants cannot voluntarily dismiss discrete claims.
Voluntarily Dismissing Claims
The Eleventh Circuit has recently been adamant in holding that litigants cannot voluntarily dismiss discrete claims under Federal Rule of Civil Procedure 41. Rule 41 allows for the voluntary dismissal of “actions” by notice, stipulation, or court order. And the Eleventh Circuit has repeatedly said that the rule’s use of the term “action”—not “claim”—means that litigants can dismiss only entire actions under Rule 41. So when litigants try to create a final decision by voluntarily dismissing unresolved claims, the Eleventh Circuit has dismissed those appeals for a lack of a final decision. (See my posts Finality After Rule 41 Dismissals of Claims & Actions and More on Rule 41 Dismissals of Actions and Claims for more on some of these decisions.)
Abandoning Claims
Lowery did not mention any of these cases on voluntary dismissals. It instead cited Mid City Management Corp. v. Loewi Realty Corp., in which the Fifth Circuit held that abandoning unresolved claims in response to an inquiry from the district court judge produces a final decision. The Lowery court thought that “a written notice abandoning a claim without objection by the opposing party accomplishes the same thing.” So whether initiated by the district court or the parties, abandoning unresolved claims results in a final, appealable decision.
Abandoning v. Voluntarily Dismissing Claims
Lowery reached the right result. The plaintiffs were willing to abandon the only unresolved claim. So district court proceedings were over. It makes complete sense to hold that there was a final decision.
But I don’t see a meaningful difference between “voluntarily dismissing” a claim and “abandoning” it. In the cases in which litigants purported to use Rule 41 to voluntarily dismiss unresolved claims, their conduct could easily be seen as abandoning those claims. And if we characterized those actions as abandoning unresolved claims, Lowery suggests that there would have been a final decision.
Lowery v. Amguard Insurance Co., 2023 WL 6531565 (11th Cir. Oct. 6, 2023), available at the Eleventh Circuit and Westlaw