The Eleventh Circuit held that a decision was final and appealable despite the voluntary dismissal of all remaining claims without prejudice.
July 17, 2020
In Corley v. Long-Lewis, Inc., the Eleventh Circuit held that a district court’s resolution of all claims was final and appealable despite the plaintiffs’ voluntarily dismissing some of those claims without prejudice. In doing so, the court had to wade through its conflicting lines of authority in this area—one holding that the resolution of all claims is final despite the voluntary dismissal, the other holding that it’s not. The conflicting cases could not be reconciled. The court accordingly had to go with the older precedent. And that precedent held that “an order granting a motion to voluntarily dismiss the remainder of a complaint under Rule 41(a)(2) ‘qualifies as a final judgment for purposes of appeal.’” The court also addressed its territorial jurisdiction to review the decision of an MDL transferee court and appellate standing after some claims are voluntarily dismissed. And Chief Judge William Pryor—who authored the majority opinion—wrote a separate concurrence discussing the messy state of the law governing governing appeals after voluntary dismissals and offering alternatives to avoid that mess.
The Corley Litigation
Corley involved asbestos-related claims against several defendants. Simplifying a bit, the plaintiffs (the decedent’s surviving spouse and estate) alleged that the decedent had been exposed to asbestos-containing products across his career in the Navy and as a private mechanic/repairman. They sued dozens of defendants in Alabama court. The defendants removed the case to federal court, and it was transferred to the asbestos multidistrict litigation in the Eastern District of Pennsylvania. The Pennsylvania district court dismissed the claims against 17 defendants that had supplied products the decedent used while in the Navy. (The opinion calls this group of defendants the “Navy suppliers,” and I will, too.)
The case eventually made its way back to the Alabama district court, where the district court dismissed the plaintiffs’ claims against all but two other defendants. The plaintiffs then asked the district court to voluntarily dismiss their claims against the remaining two defendants without prejudice. The district court agreed to do so. It then entered a final judgment, and the plaintiffs appealed the dismissal of their claims against the Navy suppliers.
The Jurisdictional Knots
The Eleventh Circuit saw three jurisdictional issues that it needed to address before it could reach the merits:
- Was the order dismissing the remaining claims a final, appealable decision?
- Did the Eleventh Circuit have territorial jurisdiction to review an order entered by the Pennsylvania district court?
- Did the plaintiffs have standing to appeal despite voluntarily dismissing their remaining claims?
Appealing After a Dismissal Without Prejudice
The Eleventh Circuit first held that the district court had entered a final, appealable decision.
The Problem of Appeals After Voluntary Dismissals Without Prejudice
As a general matter, appeals in federal court must wait until the end of district court proceedings, after all issues have been resolved and all that remains is enforcing the judgment. This general rule protects district court proceedings from the interruption of interlocutory appeals, and it ensures that all related issues are resolved in a single appeal.
Parties sometimes attempt to skirt this limit on interlocutory appeals by voluntarily dismissing the unresolved parts of cases without prejudice. The plan is to dismiss those claims (thereby ending district court proceedings), appeal, and—regardless of the appeal’s outcome—later refile the voluntarily dismissed claims. Granted, there might be issues in pursing the refiled claims like preclusion or statutes-of-limitations. The point is that nothing the district court did prevents the plaintiff from refiling.
Courts normally see this tactic for what it is: an attempted end-run around the final-judgment rule. And they often rebuff the attempt. But not always, and the courts of appeals have developed a variety of rules governing appeals after voluntary dismissals without prejudice. Some let the would-be appellant fix the finality problem by disclaiming any right to refile the voluntarily dismissed claims. Others look to see whether the appellant was genuinely trying to skirt the final-judgment rule. And others ask whether there is any real prospect of refiling the dismissed claims.
The Eleventh Circuit’s Tangled Caselaw
Corley required the Eleventh Circuit to wade through its caselaw in this area. The court began by noting that the dismissal of all remaining claims without prejudice seemed final. After all, the district court was done with the case. But the Eleventh Circuit’s caselaw—which the court analogized to a Jackson Pollock painting—complicated matters.
One line of decisions—which started with the former Fifth Circuit’s decision in LeCompte v. Mr. Chip, Inc.—holds that voluntary dismissals without prejudice are final and appealable. Another line of cases—which traces back to another former-Fifth Circuit decision, Ryan v. Occidental Petroleum Corp.—holds that they’re not. These two decisions were not necessarily inconsistent:
We can read LeCompte to establish that a voluntary dismissal under Rule 41(a)(2) is a final decision for the purposes of appeal at least when the court places stringent conditions on refiling. Ryan qualifies that voluntary dismissals are deprived of finality when part of the complaint remains before the district court, which occurs when a plaintiff moves to voluntarily dismiss only part of his remaining complaint without prejudice, the district court grants the motion without purporting to dismiss the remainder of the complaint, and the dismissal order contemplates future filings in the court.
But subsequent decisions created a conflict. In some cases, the Eleventh Circuit allowed appeals after voluntary dismissals without prejudice. In others, the court held that voluntary dismissals without prejudice precluded a district court decision from being final.
Corley concluded that these two conflicting lines of authority cannot be reconciled. So the court had to go with its oldest decision. That decision was McGregor v. Board of Commissioners, which held that “[a]n order granting a plaintiff’s motion for voluntary dismissal pursuant to Rule 41(a)(2) qualifies as a final judgment for purposes of appeal.”
The Eleventh Circuit accordingly concluded that the district court in Corley had issued a final decision. Despite the plaintiffs’ voluntarily dismissing some of their claims without prejudice, the district court’s decision was final and appealable.
Territorial Jurisdiction
The Navy suppliers argued that the Eleventh Circuit lacked “territorial” jurisdiction to review the Pennsylvania district court’s decision dismissing them. Under 28 U.S.C. § 1294, “appeals from reviewable decisions of the district and territorial courts shall be taken . . . [f]rom a district court of the United States to the court of appeals for the circuit embracing the district.” The Eastern District of Pennsylvania is in the Third Circuit, not the Eleventh. The Navy suppliers accordingly argued that the plaintiffs had appealed to the wrong court.
A split exists on this issue. Most courts hold “that they can review an out-of-circuit interlocutory decision so long as they have jurisdiction over the district court that issued the appealable decision.” The Tenth Circuit holds otherwise.
The Eleventh Circuit sided with the majority. It concluded “that the phrase ‘reviewable decisions’ in section 1294 refers to appealable decisions.” And an interlocutory decision is not normally appealable. It instead merges into the final judgment, which is appealable. And that final judgment is the “reviewable decisions”: “even when we consider the merits of an interlocutory order, [the court] ‘review[s]’ the final decision into which the earlier order merged.”
Standing After a Voluntarily Dismissal
Finally, the Navy suppliers argued that the plaintiffs lacked standing to appeal after voluntarily dismissing their remaining claims. After all, the plaintiffs got exactly what they asked for: a dismissal without prejudice. The Navy suppliers accordingly argued that the plaintiffs were not aggrieved by the district court’s decision.
The Eleventh Circuit rejected this argument, too. Granted, the plaintiffs got what they asked for when it came to the claims against the voluntarily dismissed defendants. But they suffered an adverse ruling on their claims against the Navy suppliers. The case was no different from one in which the plaintiff won on some claims but lost on others.
The Merits
On the merits, the Eleventh Circuit affirmed the Pennsylvania district court’s decision.
Chief Judge Pryor’s Concurrence
Chief Judge William Pryor wrote the majority opinion in Corley. He also authored a separate concurrence, joined by Judge Luck (Judge Jilly Pryor was the other panel member). In his concurrence, Chief Judge Pryor set out to “underscore the widespread problems that Federal Rule of Civil Procedure 41(a) creates in finality doctrine and to highlight better ways for many litigants to secure appellate review of decisions that resolve only some of their claims.” He noted the several intracircuit splits that exist on appealing after some claims have been voluntarily dismissed without prejudice, and he outlined some of the various approaches courts have used:
Many circuits, for example, assess the likelihood that the plaintiff will relitigate dismissed claims. In other circuits, this plaintiff can secure appellate jurisdiction by recanting before the appellate panel any intention of pursuing the voluntarily dismissed claims. The plaintiff will receive a particularly good deal in the Third Circuit, which requires him to renounce pursuing the dismissed claims only in the same district court. The First Circuit will hear an appeal if he “unequivocally” reserved the right to appeal in the district court, while the Federal and Ninth Circuits will reach the merits if he persuades them that he acted in good faith and did not intend to manufacture appellate jurisdiction with the voluntary dismissal. But the plaintiff should take the opposite approach if he finds himself in the Eighth Circuit, which has held that finality exists when the plaintiff tries to manufacture jurisdiction—that is, if the plaintiff voluntarily dismissed his claims without prejudice to “expedite appellate review” of other issues.
All of this attention on Rule 41 dismissals, Chief Judge Pryor argued, was unnecessary. Several other avenues exist for securing appeals before all claims are resolved. Chief among those options is Federal Rule of Civil Procedure 54(b), which allows the district court to certify for immediate appeal a decision resolving some (but not all) claims in a multi-claim or multi-party action. District courts can also sever claims or parties under Rule 21, and parties can amend their pleadings to drop their remaining claims.
Chief Judge Pryor concluded by encouraging district courts to consider these other options when parties try to manufacture an appeal by voluntarily dismissing claims without prejudice. Granted, Corley sanctioned the voluntary dismissal tactic. But an en banc court or the Supreme Court might adopt a different approach.
Thanks to Howard Bashman and Beverly Pohl for each sending this case my way.
Corley v. Long-Lewis, Inc., 2020 WL 4006602 (11th Cir. July 16, 2020), available at the Eleventh Circuit and Westlaw.