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For lawyers and clients who have lost an important ruling in the district court, the only solace may be the prospect of reversal on appeal. However, pursuant to the well-established “final judgment” rule under 28 U.S.C. 1291, appellate review ordinarily is not immediately available but must await the conclusion of the entire case. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). The lack of prompt appellate review is especially problematic in litigation involving multiple claims. Such cases are common in the federal courts, given the complexity of many disputes and the liberal joinder provisions of the Federal Rules of Civil Procedure. By definition, disposition of some, but not all, claims is not a final and appealable judgment. Fed. R. Civ. P. 54(b) specifically vests in district courts the authority to permit immediate appeals in multiclaim cases under a prescribed standard. In some cases, however, the parties do not request entry of a Rule 54(b) judgment or the district judge declines to enter one. Appellate courts are wary of manufactured finality In that situation, a strategy often employed by plaintiffs is the dismissal without prejudice of the unadjudicated claims. Under this approach, the district court can render a judgment that dismisses some counts with prejudice on the merits and the remaining counts without prejudice at the behest of the plaintiff. In this way, the plaintiff seeks to file an immediate appeal regarding the claims dismissed on the merits with prejudice and still be free later to litigate those dismissed without prejudice. Not surprisingly, courts of appeals are wary of such efforts to manufacture a final judgment that permits immediate appellate review of some parts of a case but does not in fact resolve all of the claims presented. Moreover, the possibility of future litigation over the claims dismissed without prejudice means that the appellate court could face a second appeal involving the same dispute, thus allowing the sort of piecemeal review that the final-judgment rule is designed to prevent. See Coopers & Lybrand, 437 U.S. at 467, 472 n.8. Nevertheless, immediate appeal of some claims and reservation of others for possible future litigation may be the most sensible course for the parties and the most efficient procedure for the judicial system. For example, suppose that the claims dismissed with prejudice are the principal ones in the case, and that the claims dismissed without prejudice are of lesser importance that are not worthwhile for the plaintiff to pursue on their own but only as components of the larger lawsuit. If the dismissals with prejudice are affirmed on appeal, the plaintiff will abandon the other claims, and neither the district court nor the appellate court will ever have to consider them. Conversely, if the appeal results in reversal of the dismissals with prejudice, the plaintiff will be able on remand of those claims to litigate the claims dismissed without prejudice as well. The courts of appeals have followed different approaches to this issue. In view of this circuit split, counsel must carefully identify and follow the controlling rule in the applicable jurisdiction. The U.S. Court of Appeals for the Federal Circuit addressed this question in Doe v. U.S., 513 F.3d 1348 (Fed. Cir. 2008). There, the plaintiffs (joined by the defendants) sought a dismissal of an unadjudicated claim without prejudice because it was of only minor significance and not worth litigating on its own; indeed, the plaintiffs represented that they would drop that claim altogether if they did not prevail in their appeal of the claims that had been dismissed with prejudice. Id. at 1354. The trial court entered the requested judgment dismissing all but one claim with prejudice and the remaining claim without prejudice. The Federal Circuit held that this was a final and appealable judgment. Its decision relied on the law in several circuits allowing appeals in those circumstances. Those courts have adopted a “flexible approach” (id. at 1353) and “declined to follow a bright-line rule that judgments must always be treated as nonfinal whenever unresolved claims are voluntarily dismissed without prejudice.” Id., citing James v. Price Stern Sloan, 283 F.3d 1064 (9th Cir. 2002); Chrysler Motors Corp. v. Thomas Auto Co., 939 F.2d 538 (8th Cir. 1991); Hicks v. NLO Group Inc., 825 F.2d 118 (6th Cir. 1987). The Federal Circuit rejected the strict rule to the contrary in other circuits that there is no final judgment � and hence no appellate jurisdiction � when “unresolved claims are voluntarily dismissed without prejudice.” Doe, 513 F.3d at 1352, citing Rabbi Jacob Joseph Sch. v. Province of Mendoza, 425 F.3d 207 (2d Cir. 2005); Marshall v. Kansas City S. Ry. Co., 378 F.3d 495 (5th Cir. 2004); West v. Macht, 197 F.3d 1185 (7th Cir. 1999); State Treasurer v. Barry, 168 F.3d 8 (11th Cir. 1999). See also Erie County Retirees Ass’n v. County of Erie, Pa., 220 F.3d 193 (3d Cir. 2000), cert. denied, 532 U.S. 913 (2001); John’s Insulation Inc. v. L. Addison Assoc. Inc., 156 F.3d 101 (1st Cir. 1998); Cook v. Rocky Mountain Bank Note Co., 974 F.2d 147 (10th Cir. 1992). The former line of cases adopting the more flexible approach allows an appeal as of right even though not all the claims have been finally disposed of. For this reason, these decisions seem to circumvent the policy balance struck by Rule 54(b) to permit appeals in multiclaim cases only if the district court determines that the conditions expressed in the rule are satisfied. In addition, 28 U.S.C. 1292(b), authorizing certification of controlling questions of law, provides another possible avenue of appellate review. Relying on the 9th Circuit’s decision in James, the Federal Circuit in Doe explained that appellate jurisdiction would not exist when there is ” ‘evidence of intent to manipulate our appellate jurisdiction’ ” or ” ‘the record reveal[s] that the district court and the parties have schemed to create jurisdiction over an essentially interlocutory appeal.’ ” 513 F.3d at 1353. It is not entirely clear what the court meant by this statement. If it is enough to defeat appellate jurisdiction that counsel deliberately sought to devise an appealable final judgment, that will always be true; tautologically, that is the whole point of seeking a dismissal without prejudice. Nor is it clear that appellate jurisdiction should turn on the subjective intent of the parties. “[J]urisdictional rules should be clear,” and “[m]otives are difficult to evaluate.” Lapides v. Board of Regents of the University System of Ga., 535 U.S. 613, 621 (2002). Furthermore, appellate courts are particularly ill-suited to make factual determinations regarding intent. One common situation arises in which immediate review of a judgment dismissing a claim without prejudice would seem to be proper under 28 U.S.C. 1291 and would not be at odds with Rule 54(b) or run afoul of the policy against piecemeal appeals. If the case is dismissed on the condition that the plaintiff permanently forgo the lesser claims that were dismissed without prejudice unless the appellate court overturns the dismissal of the principal claims with prejudice, a final-judgment appeal should lie. In this situation, there is no danger of piecemeal appeals; neither the trial nor the appellate court is burdened with unnecessary or duplicative proceedings; and the plaintiff is afforded the opportunity of immediate review of the dismissal with prejudice of the main part of its case while still preserving the lesser claims if (and only if) there is a reversal on the principal claims. In essence, the judgment being appealed is final in the sense that it is a conditional dismissal with prejudice in the event the court of appeals does not reverse the principal portion of the trial court’s judgment. Conditional dismissal constitutes a final judgment Significantly, the 2d Circuit has allowed a final-judgment appeal in these circumstances. In Purdy v. Zeldes, 337 F.3d 253 (2d Cir. 2003), the district court granted summary judgment against the plaintiff on two of his claims and dismissed the third claim “without prejudice to refiling it if, but only if, the dismissal of his first two claims was reversed on appeal”; because the case was dismissed “with that condition,” “plaintiff’s ability to reassert [the] claim [was] made conditional on obtaining a reversal from th[e appellate] court.” Id. at 257-58. The court of appeals held that the plaintiff’s “conditional waiver . . . create[d] a final judgment reviewable by this court,” emphasizing that the plaintiff ran the risk that his case would be over in the event his appeal proved to be unsuccessful. Id. at 258. Thus, although the 2d Circuit generally disallows an appeal based on a dismissal without prejudice (see Rabbi Jacob Joseph Sch., supra), it permitted immediate review when the judgment would terminate the case once and for all if the appeal did not succeed. This conclusion is consistent with the principle, followed in every circuit, that the dismissal of the remaining claims with prejudice at the request of the plaintiff gives rise to a final judgment. As the 2d Circuit recognized in Purdy, the plaintiff’s election to relinquish those claims unless it prevails on appeal “‘furthers the goal of judicial economy by permitting a plaintiff to forgo litigation on the dismissed claims while accepting the risk that if the appeal is unsuccessful, the litigation will end.’” 337 F.3d at 258. See also James, 283 F.3d at 1068 (plaintiff’s reasons for dismissal “were entirely legitimate” because a trial only on the claim dismissed without prejudice “would not be an efficient use of time and resources”). The same analysis is applicable to a judgment that, although in form dismissing some claims without prejudice, effectively results in a dismissal of the case in its entirety if the plaintiff does not obtain appellate reversal on the principal claims that were dismissed with prejudice. Mark I. Levy is the chairman of the Supreme Court and appellate advocacy practice in the Washington office of Kilpatrick Stockton. He can be reached at [email protected].

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