Abandoning (Rather than Dismissing) Claims to Create Finality
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 ContactRelated 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
This month’s roundup features two decisions on litigants’ attempts to voluntarily dismiss some of their claims. In one, a defendant filed a written, pretrial notice that it abandoned one of its counterclaims. In another, the parties stipulated to a dismissal, but one defendant did not sign the stipulation. In both cases, the court deemed the […]
Continue reading....
In Gessele v. Jack in the Box Inc., the Ninth Circuit held that when a district court alters its judgment by granting a post-judgment motion, the time to appeal runs from the entry of an amended judgment. Unlike orders denying post-judgment motions, the appeal clock does not start with the order itself.
Continue reading....
In Simmons v. USI Insurance LLC, the Eleventh Circuit held that the purported abandonment of a counterclaim before trial was ineffective and thus precluded appellate jurisdiction. The counterclaim was the only theory of relief that had not been resolved at summary judgment or trial. And in a written notice before trial, the defendant had said […]
Continue reading....
September’s biggest development in federal appellate jurisdiction concerned appeals from denials of anti-SLAPP motions under California law. The Ninth Circuit overruled its longstanding rule that defendants can immediately appeal from these denials via the collateral-order doctrine. But only a week later, the Federal Circuit followed that now-overruled caselaw and heard an anti-SLAPP appeal. It will […]
Continue reading....
Last month saw the Ninth Circuit apply its rule that a minute order can count as a separate document for purposes of starting the appeal clock. The Sixth Circuit explained when it cannot review contract-formation issues in an arbitration appeal. And the Fourth Circuit declined to exercise pendent appellate jurisdiction over standing and ripeness issues […]
Continue reading....