This is the third article in our series exploring proposed changes to the Federal Rules of Civil Procedure and the New York Civil Practice Law and Rules aimed at reducing frivolous litigations and reining in escalating litigation costs.

Moving to dismiss a meritless complaint is a vital weapon in the arsenal of cost-conscious litigants. But when a federal district court wrongly denies a meritorious motion, the defendant who should have been out of the case is instead out of luck. Unlike the procedure in New York state courts, under the federal rules of civil procedure, the denial of a motion to dismiss does not qualify as a “final decision” and thus there is no appeal as of right, and discretionary appeals almost always fall outside the scope of 28 U.S.C. §1292(b). As a result, defendants are forced to choose between two evils: accede to a disadvantageous settlement of meritless claims or incur skyrocketing legal fees for discovery, further motion practice and even trial. To reduce the heavy burden on clients and the strain on an overburdened district court system while controlling the volume of interlocutory appeals, we propose amending 28 U.S.C. §1292 to permit a modified appeal as of right from the denial of motions to dismiss.

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