Litigants routinely fall into the finality trap when trying to appeal from a partial final judgment. What is the finality trap and how does this happen? The typical scenario goes like this: a plaintiff brings a complaint asserting multiple claims in federal court. The plaintiff actually cares about only a subset of those claims. On summary judgment, the district court dismisses the plaintiff’s favored claims with prejudice, leaving only the less favored claims to resolve. The plaintiff does not want to wait for the court to resolve those remaining claims before it appeals from the dismissal of its favored claims. At the same time, the plaintiff does not want to abandon those less favored claims entirely in case it does not prevail on appeal. The solution: After consulting with defense counsel, jointly filing a stipulated dismissal of the plaintiff’s remaining claims, without prejudice, under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Given that such dismissals are effective immediately, without any court order, there is supposedly nothing more for the district court to do, and the case is closed. The plaintiff then appeals, having in its hand something that purports to be a final judgment. Whether that judgment is, in fact, “final” from the court of appeals’ perspective … well, as it turns out, that depends on what part of the country the litigants are in.
Pursuant to 28 U.S.C. §1291, courts of appeals “have jurisdiction of appeals from all final decisions of the district courts of the United States.” Id. A “final decision” is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233 (1945)). A partial final judgment dismissing certain claims with prejudice, followed by the stipulated dismissal of all other pending claims (albeit without prejudice), as in the scenario described above, is one that, on its face, would seem to fall within that definition. From the district court’s perspective, there is nothing left for it to do. In the event that the plaintiff were to reassert its voluntarily dismissed claims at some point in the future, it would need to do so by filing a new civil action.