En Banc Argument in the Fifth Circuit’s Zombie Action

Federal courts of appeals have spent a lot of energy determining whether litigants can appeal after a dismissal without prejudice. Some courts have declared that these dismissals are final decisions and thus generally appealable. And some courts—sometimes the same courts, albeit in different opinions—announce the opposite rule: that dismissals without prejudice are not generally appealable. […]

I have a new article on appeals from voluntary dismissals after an adverse interlocutory decision.

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 […]

In In re Esteva, the Eleventh Circuit dismissed an appeal after concluding that a Rule 41(a)(1)(A) voluntary dismissal was ineffective. The stipulated dismissal purported to dismiss all unresolved claims. But according to the Eleventh Circuit, that’s not allowed—Rule 41(a)(1)(A) permits the voluntary dismissal of only entire actions, not individual claims. With the voluntary dismissal ineffective, […]

I’ve written a lot on this site about the finality trap in the last few years. Now I’ve published an essay on the trap in the New York University Law Review Online. I argue that the trap is asinine. And there’s an easy fix to it: let litigants disclaim the right to refile voluntarily dismissed […]

In Union Pacific Railroad Co. v. Illinois Mine Subsidence Insurance Fund, the Seventh Circuit held that it lacked jurisdiction to immediately review an order that narrowed the potential injunctive relief in an action. The plaintiff in Union Pacific sought to permanently enjoin the defendant from bringing certain claims against the plaintiff. The district court rejected some […]

May saw several decisions on effective injunction denials. One of those decisions raised an interesting question about the Supreme Court’s test for when a district court order effective denies a preliminary injunction. In other developments, the Fifth Circuit sat en banc to jettison its rule barring review of waiver-based remands. Other decisions addressed the finality […]

In Heidi Group, Inc.v. Texas Health and Human Services Commission, the Fifth Circuit reviewed the denial of federal and state immunities but declined to exercise pendent appellate jurisdiction over other issues. In the course of doing so, one judge questioned the collateral-order doctrine’s application to state immunities, and the entire court questioned the doctrine of […]

The Supreme Court granted cert in GEO Group, Inc. v. Menocal. The case asks if defendants can immediately appeal from the denial of derivative sovereign immunity via the collateral-order doctrine. I wrote about the petition and the underlying circuit split earlier this year. And I wrote about the Tenth Circuit decision from which the petition stems […]

Injunction appeals have been in the spotlight of late. We’ve seen a few recent decisions on appeals from temporary restraining orders. And this month has already produced three cases involving effective denials of preliminary injunctions. One of these cases raised a question about the test for effective—and thus appealable—injunction denials. Under the Supreme Court’s decision […]