Another plaintiff has fallen into the Fifth Circuit’s finality trap, and it makes me wonder whether the en banc court actually made things worse.
May 15, 2020
Last week, in Williams v. Taylor Seidenbach, Inc., the Fifth Circuit failed to disarm its finality trap. This week, in CBX Resources, L.L.C. v. ACE American Insurance Co., a panel of the Fifth Circuit watched as another party fell into that trap. And unlike the plaintiffs in Williams, the plaintiff in CBX Resources had not obtained the post-proceedings Rule 54(b) certification that Williams held would cure any jurisdictional defects. Presumably the CBX Resources plaintiff will go through the rigmarole of doing so and eventually be back before the Fifth Circuit.
CBX Resources has me wondering if the Fifth Circuit’s Rule 54(b) approach is not only unnecessary, but also makes things worse. The approach seems to encourage the very thing that the court wanted to avoid: litigants’ manufacturing interlocutory appeals by voluntarily dismissing all remaining claims and then refiling them.
Rather than disarm the finality trap, the Fifth Circuit found a way to avoid it: an odd, unintuitive, and unnecessary use of Rule 54(b).
May 9, 2020
When plaintiffs lose on some of their claims and then voluntarily dismiss the rest, they risk falling into the finality trap. If the remaining claims were voluntarily dismissed without prejudice, most courts of appeals will hold that the district court has not issued a final, appealable decision under 28 U.S.C. § 1291. This general rule becomes a trap when courts don’t let plaintiffs fix the finality problem. In Williams v. Taylor Seidenbach, Inc., the en banc Fifth Circuit found one way around the trap: a Rule 54(b) certification of the claims that the district court dismissed on the merits. But the court didn’t actually disarm the trap. And its use of Rule 54(b) is an odd, unintuitive one that has the potential for future mischief.
The en banc Williams decision is fascinating and has a lot going on. It comprises four opinions, including a separate concurrence from the author of the majority opinion. Those opinions debate statutory interpretation and the role of appellate courts in creating rules of appellate jurisdiction. In this post, I hit the highlights: the legal, factual, and procedural background of Williams; the main points of the four separate opinions; and my take on the court’s decision. I ultimately find the majority opinion to be both odd and unnecessary. It’s odd in its reading and use of Rule 54(b). And it’s unnecessary given the much better option offered by one of the concurring opinions: letting litigants disclaim any right to refile their voluntarily dismissed claims. This practice is common in the courts of appeals, obviates any finality concerns, and preserves Rule 54(b)’s role.
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.
The Ninth Circuit held that Rule 60(b)(6) could undo voluntary dismissals that were sought to obtain review of class-certification denials.
November 18, 2019
In last week’s Henson v. Fidelity National Financial, Inc., the Ninth Circuit held that plaintiffs could use Rule 60(b)(6) to undo voluntary dismissals they had entered to facilitate appellate review. Before the Supreme Court’s decision in Microsoft Corp. v. Baker, the Ninth Circuit allowed plaintiffs had to use these dismissals to secure review of orders denying class certification. Baker closed that door to appeal. But Henson—which was pending on appeal when Baker was decided—held that plaintiffs who had relied on pre-Baker caselaw in voluntarily dismissing their claims could obtain relief from the judgment via Rule 60(b).