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Earlier this year, the Eleventh Circuit reiterated its rule that litigants cannot voluntarily dismiss individual claims under Federal Rule of Civil Procedure 41(a)(1). That portion of the rule permits plaintiffs to voluntarily dismiss “an action without a court order.” So plaintiffs can dismiss only entire actions under Rule 41(a)(1), and attempts to dismiss individual claims are ineffective.
Last week, in Rosell v. VMSB, LLC, the Eleventh Circuit added that litigants cannot voluntarily dismiss individual claims Rule 41(a)(2). That part of Rule 41 permits voluntary dismissals via court order. But, according to the Eleventh Circuit, it also permits the dismissal only of entire actions. So when the litigants in Rosell settled the only unresolved claim, they needed to either obtain a partial judgment under Federal Rule of Civil Procedure 54(b) or amend the complaint to remove the settled claim. Otherwise, there would be no final decision and no opportunity to appeal.
As I said earlier this year, I have my doubts about the “actions-only” interpretation of Rule 41. Rosell only reinforces those doubts.
The two main events in April were probably the Sixth Circuit’s potential expansion of Microsoft Corp. v. Baker and oral argument in the Supreme Court case on preserving issues raised in denied summary-judgment motions.
But there were several other decisions of note. Two courts addressed class-certification appeals under Rule 23(f)—one explaining the standards for granting Rule 23(f) petitions and another holding that it can address standing in those appeals. There seems to be some new tension in the Third Circuit’s caselaw on how litigants can make a dismissal with leave to refile into a final decision. The Ninth Circuit treated the denial of arbitration as an appealable denial of an injunction. And the Eleventh Circuit addressed appellate standing and non-party appeals.
Plus several new cert petitions, the appealability of the Yearsley defense, and much more.
In Ohio Public Employees Retirement System v. Federal Home Loan Mortgage Corp., the Sixth Circuit held that an invited summary-judgment decision was not final because the plaintiff was trying to circumvent Rule 23(f). The district court had denied class certification. The plaintiff then tried to manufacture a final, appealable decision by asking the district court to enter judgment against it. As the Sixth Circuit saw things, the case was no different from Microsoft Corp. v. Baker.
But there appears to be an important distinction in the underlying order that the Sixth Circuit overlooked. In Microsoft, the district court had merely denied class certification, and the named plaintiffs were free to pursue their individual claims. But in Ohio Public Employees, it looks as though the district court’s class-certification decision effectively precluded the plaintiff from prevailing on even its individual claims. If that’s the case, Ohio Public Employees extends Microsoft to a different variety of manufactured finality. In doing so, it shuts down a valuable and long-recognized tool for accelerating the inevitable end of district court proceedings.
The highlight from last month is probably the Second Circuit’s conclusion that it did not need to address its own jurisdiction when the district court lacked subject-matter jurisdiction. The decision was an immense, erroneous, and very likely unintentional expansion of federal appellate jurisdiction.
There was also a fascinating D.C. Circuit decision on what it means to be a “party” when appealing discovery orders directed at others. And the Second Circuit addressed both the appealability of § 1447(e) remands and whether appellate courts could look behind the purported reasons for a remand to the actual reasons.
Plus appeals from motions to dismiss that sought only arbitration, another cert petition on appealing church-autonomy defenses, anti-SLAPP appeals, the jurisdictionality of § 3742, the scope of Rule 23(f) appeals, and much more.
In LeChase Construction Services, LLC v. Argonaut Insurance Co., the Second Circuit held that 28 U.S.C. § 1447(d)’s bar on remand appeals applied to remands under § 1447(e). But the court also held that it could review a remand that, while purportedly under § 1447(e), was actually based on “a patently nonjurisdictional ground, such as prudential considerations.” (Cleaned up.) So the Second Circuit reviewed a remand that—though nominally done under § 1447(e)—was really an exercise of Colorado River abstention.
In Broidy Capital Management LLC v. Muzin, the D.C. Circuit dismissed a non-party’s appeal that challenged a discovery order directed to a party. The court explained that only those with some sort of party status—whether an original party, an intervenor, or some other type of “party” for purposes of appeal—may appeal. Because the would-be appellant in Broidy Capital had never obtained party status, it could not appeal to challenge any of the district court’s orders. The D.C. Circuit remanded the case to give the non-party the opportunity to obtain the necessary status.
In Solomon v. St. Joseph Hospital, the Second Circuit skipped over appellate-jurisdiction issues to address the district court’s subject-matter jurisdiction. On its face, the opinion suggests that litigants can take interlocutory appeals to challenge federal subject-matter jurisdiction. This would be a massive—and likely inadvertent—expansion of interlocutory appeals.
In Fraga v. Premium Retail Services, Inc., the First Circuit reviewed what was nominally the denial of a motion to dismiss, as that motion effectively sought to compel arbitration.
February produced a variety of decisions and developments of note. I discussed many of these in posts throughout the month, which are summarized and linked below. There were also some developments on the issue of whether denials of church-autonomy defenses are immediately appealable via the collateral-order doctrine—a divided Second Circuit denied rehearing en banc on the issue, and a new cert petition asks the Supreme Court to address these appeals. Plus decisions on appealing foreclosure orders, reviewing factual determinations in immigration appeals, pendent appellate jurisdiction over a fees award, and more.
In In re Clean Water Act Rulemaking, the Ninth Circuit held that it had jurisdiction to review an order vacating a regulation and remanding the dispute to an agency, as the district court had never deemed the regulation unlawful. This is an interesting twist on the administrative-remand rule. That rule normally bars appeals from orders remanding a dispute to an administrative agency. The Ninth Circuit said that this general rule applied only to remands after the district court resolved a dispute on the merits.
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