The Eleventh Circuit’s recent decision in Rosell v. VMSB, LLC, ___ F.4th ___, 2023 WL 3398509 (11th Cir. May 12, 2023), has nothing whatever to do with prescription medical product liability litigation, but defense counsel should know about it because is rejects one trick that plaintiffs in complex litigation use to claim appellate jurisdiction. Specifically, it rejects the concept of “partial dismissal” under Fed. R. Civ. P. 41(a), as a tool to create a final appealable order following partial dismissal of an action.
Rosell was a purported wages and hours class action. The complaint had “three counts, and both sides filed cross-motions for summary judgment.” 2023 WL 3398509, at *1. The defendant received summary judgment on the first two counts. Id. Plaintiffs decided that Count III, standing alone, was not worth pursuing, and settled it (but not the two dismissed claims). “Without opposition,” they asked the court to “direct the clerk to dismiss Count III with prejudice.” Id. That was done, and plaintiffs appealed.
The Eleventh Circuit quashed the Rosell appeal sua sponte. Partial dismissal is “procedurally improper” under either Rule 41(a)(1) or Rule 41(a)(2). Subsection (a)(1) allows a plaintiff to “dismiss an ‘action’ without a court order,” whereas Rule 41(a)(2) “specifies when an ‘action’ can be dismissed at plaintiff’s request by court order.” 2023 WL 3398509, at *1. Since the parties did not specify which subsection was the basis for dismissal, Rosell addressed them both.
Neither subsection allows dismissal of less than all of an action. Precedent expressly holds that the “plain text” of Rule 41(a)(1) requires that a “stipulation of voluntary dismissal may be used to dismiss only an ‘action’ in its entirety.” Id. at *2 (citation and quotation marks omitted). “Rule 41(a) does not permit plaintiffs to pick and choose, dismissing only particular claims within an action.” Id. (citation and quotation marks omitted).
But availability of partial dismissal with court approval under Rule 41(a)(2), had not been as clear. It is now:
These same conclusions apply to Rule 41(a)(2). . . . [T]he word “action” is used identically in both Rules 41(a)(1) and 41(a)(2). So we now make explicit what [prior precedent] at a minimum implied − a Rule 41(a)(2) dismissal can only be for an entire action, and not an individual claim.
Rosell, 2023 WL 3398509, at *2 (citations omitted). Quick, incomplete research indicates that Rosell is compatible with caselaw from other circuits. E.g., General Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1513 (9th Cir. 1995) (“Rule 41 applies to complete dismissal as to all defendants, or partial dismissal of all claims against one codefendant”); Miller v. Terramite Corp., 114 F. Appx. 536, 540 (4th Cir. 2004) (“Rule 41(a)(2) provides for the dismissal of [an] ‘action’” rather than claims”); cf. CBX Resources, LLC v. ACE American Insurance Co., 959 F.3d 175, 177 (5th Cir. 2020) (same as to Rule 41(a)(1)).
Nor did courts have any “inherent authority,” outside of Rule 41, to dismiss parts of complaints. Rosell, 2023 WL 3398509, at *2 n.1. Since “a voluntary dismissal purporting to dismiss a single claim is invalid, even if all other claims in the action have already been resolved,” the appealed order was interlocutory, and thus dismissed for want of jurisdiction. Id.
Thus, if plaintiffs in the future want to appeal from a partial summary judgment, they have to “seek partial final judgment under Rule 54(b) from the court,” or else formally amend their complaints under Rule 15.
Since plaintiffs are constantly seeking to finagle appealable orders out of anything they lose, Rosell can be a useful tool to prevent such shenanigans, particularly since lack of appellate jurisdiction is not waivable. On the other hand, in those situations – like Rosell – where the defendant is not adverse to an immediate appeal of a favorable ruling, knowledge of this limitation on Rule 41 dismissals will prevent the waste of time and effort incurred as a result of an unexpected dismissal.