Abandoning (Rather than Dismissing) Claims to Create Finality


October 8, 2023
By Bryan Lammon

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

Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.

Learn More Contact

Related Posts


In United States v. Wilson, the Ninth Circuit permitted the government to appeal a discovery order in a criminal case after the government asked the district court to dismiss the indictment to facilitate an appeal. Although the order was interlocutory, the Ninth Circuit could review it under 18 U.S.C. § 3731. That’s because § 3731 doesn’t require […]

Continue reading....

In Jones v. U.S. Merit Systems Protection Board, the Fourth Circuit reviewed a decision of the Merit Systems Protection Board even though the petitioners voluntarily dismissed some of their theories of relief. That voluntary dismissal was with prejudice, which made it highly unlikely that the voluntarily dismissed theories would ever resurface. So the petitioners were […]

Continue reading....

In New York State Telecommunications Association v. James, the Second Circuit split over an attempt at manufacturing finality. The district court had granted a preliminary injunction after concluding that federal law preempted a New York state law. The parties then stipulated to entry of a final judgment. A majority of the Second Circuit determined that […]

Continue reading....

Courts have long held that the merger doctrine does not apply when an action is dismissed for a failure to prosecute. In Marquez v. Silver, the Second Circuit extended this holding to actions dismissed as a discovery sanction. The court explained that sanction dismissals carry the same risk of strategic behavior as failure-to-prosecute dismissals. The […]

Continue reading....

Last October, the Eleventh Circuit held in Lowery v. Amguard Insurance Co. that litigants can create a final decision by abandoning unresolved claims. As I noted at the time, this holding stood in some tension with the Eleventh Circuit’s rule that litigants cannot voluntarily dismiss discrete claims. And although I liked the outcome, I did […]

Continue reading....

Recent Posts


In two appeals—Clark v. Louisville-Jefferson County Metro Government and Salter v. City of Detroit, the Sixth Circuit spoke at length about its jurisdiction to review certain Brady issues as part of qualified-immunity appeals. The cases produced a total of six opinions, several of which dove into this jurisdictional issue.

Continue reading....

In Rossy v. City of Buffalo, the Second Circuit appeared to both dismiss a qualified-immunity appeal for a lack of jurisdiction and exercise pendent appellate jurisdiction over a plaintiff’s cross-appeal. This is odd. Pendent appellate jurisdiction allows normally non-appealable issues to tag along with appealable ones. But if the denial of qualified immunity was not […]

Continue reading....

I’ve frequently written about the problem of fact-based qualified-immunity appeals both on this website and in my research. I recently decided to collect some new data on how much needless delay these appeals add to civil-rights litigation. I had done something similar a few years ago when writing about the need to sanction defendants for […]

Continue reading....

Yesterday, I filed an amicus brief in support of the petitioner in Parrish v. United States, which is currently pending before the Supreme Court. The case asks if an appellant must file a new notice of appeal after the district court reopens the time to appeal under Federal Rule of Appellate Procedure 4(a)(6). Both the […]

Continue reading....

Last month saw another rejection of pure Bivens appeals, an analysis of Perlman appeals in the grand-jury context, and a ruling on mandatory stays during a remand appeal. Plus an odd sovereign-immunity appeal, appeals without the express resolution of all claims, and much more.

Continue reading....