New Essay on Appeals After Dismissals Without Prejudice
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. Atop these contradictory general rules, courts have added a number of qualifications and exceptions.
In a new essay forthcoming in the Michigan Law Review Online, I argue that there is no helpful general rule about appealing dismissals without prejudice. That’s because the without-prejudice nature of a dismissal has little to do with appealability. Far more relevant is the nature of the underlying order. So appellate courts should focus on what the district court actually did, and not whether what it did was without prejudice. In fact, nothing would be lost—and much could be gained—if courts of appeals stopped looking to whether a dismissal was without prejudice when determining appealability.
The draft is available on SSRN. The abstract is below. Comments, as always, are welcome.
With some frequency, courts wrestle with whether litigants can appeal after dismissal without prejudice. But there is no helpful general rule to answer this question. That’s because the without-prejudice designation is more or less irrelevant to whether the dismissal is a final, appealable decision. In this essay, I show that the nature of the underlying dismissal-what the dismissal did, not its without-prejudice nature-is what matters for appealability. Courts would do well to ignore whether an action was dismissed without prejudice when it comes to determining appealability.
Bryan Lammon, There Is No Helpful General Rule About Appealing Dismissals Without Prejudice, Michigan Law Review Online (forthcoming 2024), available at SSRN.
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