The 11th Circuit’s contemporary determination in Rosell v. VMSB, LLC, ___ F.4th ___, 2023 WL 3398509 (eleventh Cir. Would possibly 12, 2023), has not anything no matter to do with prescription clinical product legal responsibility litigation, however protection suggest will have to find out about it as a result of is rejects one trick that plaintiffs in complicated litigation use to assert appellate jurisdiction. Particularly, it rejects the concept that of “partial dismissal” underneath Fed. R. Civ. P. 41(a), as a device to create a last appealable order following partial dismissal of an motion.
Rosell used to be a purported wages and hours elegance motion. The criticism had “3 counts, and either side filed cross-motions for abstract judgment.” 2023 WL 3398509, at *1. The defendant won abstract judgment at the first two counts. Identity. Plaintiffs made up our minds that Depend III, status by myself, used to be now not value pursuing, and settled it (however now not the 2 disregarded claims). “With out opposition,” they requested the courtroom to “direct the clerk to push aside Depend III with prejudice.” Identity. That used to be achieved, and plaintiffs appealed.
The 11th Circuit quashed the Rosell enchantment sua sponte. Partial dismissal is “procedurally wrong” underneath both Rule 41(a)(1) or Rule 41(a)(2). Subsection (a)(1) permits a plaintiff to “push aside an ‘motion’ with out a courtroom order,” while Rule 41(a)(2) “specifies when an ‘motion’ can also be disregarded at plaintiff’s request by means of courtroom order.” 2023 WL 3398509, at *1. For the reason that events didn’t specify which subsection used to be the foundation for dismissal, Rosell addressed them each.
Neither subsection permits dismissal of not up to all of an motion. Precedent expressly holds that the “simple textual content” of Rule 41(a)(1) calls for {that a} “stipulation of voluntary dismissal is also used to push aside handiest an ‘motion’ in its entirety.” Identity. at *2 (quotation and citation marks left out). “Rule 41(a) does now not allow plaintiffs to select and make a selection, disregarding handiest explicit claims inside of an motion.” Identity. (quotation and citation marks left out).
However availability of partial dismissal with courtroom approval underneath Rule 41(a)(2), had now not been as transparent. It’s now:
Those similar conclusions practice to Rule 41(a)(2). . . . [T]he phrase “motion” is used identically in each Laws 41(a)(1) and 41(a)(2). So we now make specific what [prior precedent] at a minimal implied − a Rule 41(a)(2) dismissal can handiest be for a whole motion, and now not a person declare.
Rosell, 2023 WL 3398509, at *2 (citations left out). Fast, incomplete analysis signifies that Rosell is appropriate with caselaw from different circuits. E.g., Basic Sign Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1513 (ninth Cir. 1995) (“Rule 41 applies to finish dismissal as to all defendants, or partial dismissal of all claims in opposition to one codefendant”); Miller v. Terramite Corp., 114 F. Appx. 536, 540 (4th Cir. 2004) (“Rule 41(a)(2) supplies for the dismissal of [an] ‘motion’” relatively than claims”); cf. CBX Sources, LLC v. ACE American Insurance coverage Co., 959 F.3d 175, 177 (fifth Cir. 2020) (similar as to Rule 41(a)(1)).
Nor did courts have any “inherent authority,” outdoor of Rule 41, to push aside portions of lawsuits. Rosell, 2023 WL 3398509, at *2 n.1. Since “a voluntary dismissal purporting to push aside a unmarried declare is invalid, even though all different claims within the motion have already been resolved,” the appealed order used to be interlocutory, and thus disregarded for need of jurisdiction. Identity.
Thus, if plaintiffs someday wish to enchantment from a partial abstract judgment, they have got to “search[] partial ultimate judgment underneath Rule 54(b) from the courtroom,” or else officially amend their lawsuits underneath Rule 15.
Since plaintiffs are continuously looking for to finagle appealable orders out of anything else they lose, Rosell is usually a great tool to forestall such shenanigans, in particular since loss of appellate jurisdiction isn’t waivable. Then again, in the ones scenarios – like Rosell – the place the defendant is now not antagonistic to a direct enchantment of a positive ruling, wisdom of this limitation on Rule 41 dismissals will save you the waste of effort and time incurred because of an surprising dismissal.
