Page Plus of Atlanta, Inc. v. Owl Wireless, LLC
2013 U.S. App. LEXIS 21972
| 6th Cir. | 2013Background
- Page Plus and SNAP Prepaid sued Owl Wireless for breach of contract; Owl counterclaimed for breach of the same contract.
- The district court granted summary judgment for Owl on the plaintiffs’ claims and on Owl’s counterclaim, leaving only a damages trial on Owl’s counterclaim.
- Owl elected not to pursue damages at that time and the parties filed a Rule 41(a)(2) stipulation dismissing Owl’s damages claim with a condition: Owl could reassert the counterclaim if any aspect of the district court’s rulings were reversed or modified on appeal; plaintiffs waived time-based defenses to revival.
- Both sides appealed parts of the district court’s rulings; the appeals raised whether the dismissal produced a final, appealable order under 28 U.S.C. § 1291.
- The Sixth Circuit sua sponte requested supplemental briefing on appellate jurisdiction and concluded it lacked jurisdiction because the conditional dismissal was not a final decision under § 1291.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a conditional dismissal that reserves the right to reinstate claims creates a final, appealable order under 28 U.S.C. § 1291 | The conditional dismissal produces a final order permitting immediate appeal (parties effectively consented to appellate review) | Conditional dismissal is not a final decision because it leaves a claim that can "spring back" and thus leaves something for the district court to do | Held: No. A conditional dismissal is not final under § 1291 and cannot support appellate jurisdiction |
| Whether party consent to jurisdiction can cure lack of subject-matter jurisdiction | Consent makes the appeal proper | Consent cannot confer federal subject-matter jurisdiction | Held: Consent cannot create subject-matter jurisdiction; jurisdiction is lacking |
| Whether voluntary dismissals without prejudice (Hicks) support finality where revival protections were negotiated | Hicks supports finality of dismissal without prejudice | Hicks is distinguishable because Hicks did not have the risk-free revival and waiver of defenses present here | Held: Hicks does not control; the conditional, risk-free dismissal here is not final |
| Whether other remedies (Rule 54(b) or § 1292(b)) make the parties’ conditional approach acceptable | Parties argued pragmatic need for immediate review | Court: Rule 54(b) and § 1292(b) exist to allow supervised, discretionary immediate appeals; parties cannot circumvent them | Held: Parties cannot circumvent § 1291 by private conditional dismissal; they should use Rule 54(b) or § 1292(b) |
Key Cases Cited
- Catlin v. United States, 324 U.S. 229 (finality test for appealability)
- Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (one-case, one-appeal rule)
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (policy reasons against piecemeal appeals)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (jurisdictional briefing principles)
- Ruppert v. Principal Life Ins. Co., 705 F.3d 839 (Eighth Circuit: conditional dismissals may "spring back")
- Bonner v. Perry, 564 F.3d 424 (unresolved damages preclude finality)
- People’s Bank v. Calhoun, 102 U.S. 256 (consent cannot create federal jurisdiction)
- India Breweries, Inc. v. Miller Brewing Co., 612 F.3d 651 (conditional dismissals are impermissible end-runs)
- Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073 (permitting piecemeal appeals risks serial appeals)
- Hicks v. NLO, Inc., 825 F.2d 118 (Sixth Circuit decision on voluntary dismissal finality; distinguished here)