The en banc Fifth Circuit can disarm its finality trap, which occasionally precludes appeals when plaintiffs voluntarily dismiss some of their claims.
January 28, 2020
Last week, the en banc Fifth Circuit heard argument in Williams v. Taylor Seidenbach, Inc. The case gives that court the opportunity to clean up the “finality trap” it has created for litigants. The Fifth Circuit has held that parties may not appeal when they’ve voluntarily dismissed some of their claims without prejudice; the voluntary dismissal precludes the district court’s decision from being final. But those same parties also cannot return to the district court to change the dismissal to one with prejudice, as district court proceedings are finished. Cases that fall into this finality trap exist in a sort of litigation limbo. I’ve accordingly called them “zombie actions”: they are final and unalterable in the district court, but they are not final—and will never become final—for appeal.
The Fifth Circuit has several options for fixing its finality trap. In this post, I discuss those options, as well as the finality trap’s origins, its application in Williams, the en banc argument, and the larger problems in this area of appellate jurisdiction.
The court heard argument on its “finality trap”—the rule that precludes appeals when plaintiffs voluntarily dismiss some claims without prejudice.
January 23, 2020
Update: For my full post on the argument in Williams, see The Fifth Circuit & the Finality Trap.
The en banc Fifth Circuit heard argument this morning in Williams v. Taylor Seidenbach, Inc. The case addresses the finality and appealability of an action when some claims have been decided on the merits but others have been voluntarily dismissed without prejudice.
An appeal was improperly manufactured by dismissing claims without prejudice, and the district court failed to explain its Rule 54(b) certification.
January 22, 2020
The courts of appeals occasionally struggle with appellate jurisdiction when parties dismiss some of their claims without prejudice. The issue comes up when a district court has resolved some of the claims in a multi-claim suit and parties try to transform that non-final decision into a final one by dismissing their remaining claims without prejudice. Courts hold that parties cannot manufacture an appeal this way. Parties instead must obtain a Rule 54(b) certification, which allows district courts to certify for immediate appeal a decision resolving some (but not all) claims in a multi-claim suit.
The Sixth Circuit yesterday rejected one of these manufactured appeals. In Novia Communications, LLC v. Weatherby, the plaintiff had tried to take a belt-and-suspenders approach to appellate jurisdiction, voluntarily dismissing its unresolved claims and securing a Rule 54(b) certification. But the Sixth Circuit held that neither action gave the court jurisdiction. The voluntary dismissal of three unresolved claims did not make the resolution of other claims final and appealable. And the Rule 54(b) certification was improper because it did not explain why an immediate appeal was warranted. Also of interest, the court went on to suggest that a Rule 54(b) certification might not be proper in any event due to the relationship between the resolved and unresolved claims.
An absurd application of the dismissals-without-prejudice rule means that a case is over in the district court but not final—and never can be final—for appeal.
August 18, 2019
Update: The Fifth Circuit granted rehearing en banc, and argument is scheduled for January 23, 2020.
I’ve jokingly characterized the Supreme Court’s decision in Microsoft v. Baker as creating a zombie action: one that is over in the district court but not final—and never will be final—for purposes of appeal. (The joke kills at cocktail parties.) This oddity is made possible by building most of the rules for federal appellate jurisdiction on interpretations of the term “final decisions.” Sometimes oddities like this produce pragmatically sound outcomes. The ultimate decision in Baker, for example, made practical sense.
Now the Fifth Circuit has created another zombie action—Williams v. Taylor Seidenbach, Inc. And this one makes zero sense. It’s absurd. And it needs to be reversed en banc.