State Treasurer of the State of Michigan, Public School Employees' Retirement System, Custodian of v. Harold v. Barry, Barry n.p.-500, L.P.
168 F.3d 8
11th Cir.
1999
Check Treatment

*1 REMANDED AND REVERSED as well.13 herewith. consistent proceedings

for further THE STATE OF TREASURER STATE Employ- MICHIGAN, School Public OF of, System, et Custodian Retirement ees’ III, Correll, Collins, D. Alston Steven M. Plaintiffs-Appellants, al., Atlanta, GA, Bird, for Plaintiffs- Alston & Appellants. J; Parker, Hudson, Rainer, Rain- Marbury N.P.-500, Barry BARRY, V. Harold GA, Dobbs, Atlanta, Defendants- &er Defendants-Appellees. L.P., Appellees. 97-9177. No. Appeals, Court of States

United Circuit.

Eleventh HULL, COX, CARNES Before 19, 1999. Feb. Judges. Circuit HULL, Judge: Circuit summary judgment or Because decision, we a final here was not der involved jurisdiction. lack of appeal for dismiss this this prior precedent controls This Court’s v. For Aggregates, Ltd. case. Construction est Commodities States, Cir.1998); F.3d 20 Mesa v. United I.- BACKGROUND Summary A. Cross-Motions Partial. Judgment Treasurer, as Plaintiff, Michigan’s State funds, retirement for various State Custodian Barry limited and a Harold sued Defendants “Defendants”) after (collectively, partnership Plain- deal soured. real investment estate I breach Count complaint contained: tiffs contract, performance of seeking specific watershed, soil, Be- and wildlife. protection of alleges Forest Ser- also Club Sierra already the relief received Club has 1604(g)(3)(F) cause Sierra § and 36 vice C.F.R, 219.27(c)(6), 16 U.S.C. violated seeks, not, merits require need reach it we both of which claim. with the be consistent harvest timber methods *2 agreement purchase an interest in a had anticipatory not committed an breach so partnership; II real estate Count for the duty to relieve Plaintiff of its perform. contract, seeking same breach of dam- finding necessarily dealt a fatal blow ages; expenses litiga- III for and Count also to Plaintiffs claim in Count II for dam- tion, fees, attorneys’ including damages ages for breach of that same contract. In litigiousness” for “stubborn turn, O.C.G.A. resolution of those contract claims in § 13-6-11. Defendants’ favor would defeat Plaintiffs claim in III litigiousness. Count for stubborn Defendants answered and asserted two However, despite this finding favorable Count,I compulsory counterclaims:1 for tor- May regarding 27 order specific per- relations, tious interference with business formance subsequent there was no II fiduciary duty. and Count for breach of partial summary on, motion for 2, 1996, On December Plaintiff filed a mo- of, motion for dismissal the claims in Counts partial summary judgment tion for on its II III of Plaintiffs complaint based on specific performance claim for of the contract finding. that I Count and on Defendants’ two counter- parties requested also never that the January claims. On Defendants 54(b) district court issue a Rule certificate partial summary filed a cross-motion for regarding May partial summary judg- specific per- on Plaintiffs claim for 54(b). ment order. Fed.R.Civ.P. Upon a formance of the contract in I. Count 54(b) request, Rule district court 27, 1997, May In an order filed the district certify just that no reason delay exists for granted partial Defendants’ motion for expressly entry direct the judg- of final summary judgment on Plaintiffs claim for granted, ment. If this would have allowed specific performance in Count I and denied parties May partial partial Plaintiffs motion summary judg- summary judgment order.3 specific performance ment on that claim. May The court’s 27 order also Plain- B. Pretrial Order tiffs partial summary judgment motion for making Instead of request, on Defendants’ counterclaim for tortious in- parties proceeded May They with the pending terference. That 27 order left case. first obtained the damages Plaintiffs district court’s claim for breach of consent to con- II, pretrial extend the due date for tract in Count Plaintiffs claim order for “stub- through III, litigiousness” pretrial born June 1997. The Count order and Defen- 23,1997. was then filed on June dants’ counterclaim for fiduciary breach of duty.2 order, In pretrial agreed granting partial summary Defendants only remaining claim to be tried was judgment on specific per- Plaintiffs claim for Defendants’ counterclaim for breach of fidu- I, formance ciary of the contract duty.4 pretrial Count super- Because order finding district court made a pleadings, pretrial Defendants sedes the order had rule, During argument, 1. oral Defendants acknowl- on Counts II and III of Plaintiff's com- edged they brought compul- plaint. these counts as sory counterclaims. Alternatively, requested could have May 2. The district permission order states: interlocutory to seek review under 28 1292(b), party U.S.C. but neither did so. [plaintiff] substantially comply Since did not partnership agreement, with the terms of the order, [plaintiff] specific pretrial is not entitled to the relief of In the Plaintiff asserted performance. Accordingly, [plaintiff’s] only remaining Motion “the claim to be tried before the Summary Judgment for Partial against Michigan on Claim for Court [was Defendants’] claim DENIED, Specific (Pretrial Order, fiduciary Performance is and defen- breach duties.” C, 15.) Summary Judgment dants’ Similarly, Motion for Partial rep- Attachment at Defendants [plaintiff’s] specific performance pretrial resented in the order that "[t]he is GRANTED. [was issue left to be tried Defendants’] counter- (footnote omitted.) (Pretrial fiduciary duty.” did not move for claim for breach of Order, D, summary judgment, 21.) and the district court did not Attachment effect-, having granted judgment, and the court eliminating the Adjudged motion, it is Ordered complaint.5 said Plaintiffs III in II and Counts (cid:127) motion for ap- [sic] that the defendants Accordingly, when spe- granted as to summary judgment be pretrial entered proved and *3 performance. cific remaining in the only 14,1997, July the counterclaim Defendants’ was case judgment original). cov- (Emphasis in duty. fiduciary breach specific performance only Plaintiffs ered judgment entered I. was in No claim Count Dismissal, Prejudice, of Fiducia- Without C. in- for tortious counterclaim on Defendants’ ry Duty Counterclaim terference, summary though partial the even summary clearly granted judgment order 20, 1997, parties filed a the August On first on that judgment against Defendants “Stipulation of Dis- joint stipulation entitled entered on No was counterclaim. stipu- Fiduciary Duty Claim.” missal III, II even in Plaintiffs claims Counts Federal it was filed under recited that lation pretrial order was though the effect of the 41(a)(l)(ii), and that Procedure Rule of Civil the case. remove them from preju- agreed to dismiss parties duty fiduciary breach dice Defendants” Appeal E. Notice of counterclaim, party to bear its each “with 17, 1997, Plaintiff filed a No- On October stamped the of Court The Clerk own costs.” that Plaintiff Appeal, which recited tice of prejudice as fol- voluntary dismissal without from district court’s order appealing was pursuant as dismissed “Entered lows: 27, 1997, May the final (a)(1)(i)(ii), F.R.C.P.” 19,1997. September entered on there are stated “that also stipulation tried, all to be since no claims Appellate Issue F. Jurisdiction duty except fiduciary in this action filed, this Court’s Order was resolved A after the claim were few weeks summary 27,1997.” raised, This of the district May sponte, the sua this Court 10, 1997, technically inaccurate be- order is November court’s issue. On only repeatedly requesting referred to the order cause sent letter Court specific performance and issue of parties jurisdictional Plaintiffs claim address the partial claim for dam- granting Plaintiffs nowhere discussed the court’s orders “[w]hether on stubborn appealable” II or claim based ages summary judgment in Count are final and Nonetheless, III. litigiousness in Count Plaintiff filed under 28 U.S.C. removing jurisdiction question had the effect pretrial response order to the Court’s pleadings III from the filed a II and Defendants Counts on November Thus, August stipulation 28, 1997, did con- case. which response on November only remaining which in Plaintiffs position taken resolve curred with of fidu- for breach response. Defendants’ counterclaim ciary duty. 24,1998, issued an February this Court On jurisdictional issue with carrying the order Judgment D. stated, “The order the case. The Court’s 19, 1997, of Court September the Clerk to, On required further may, are parties full, stated, in judgment which entered a jurisdictional in their issue address follows: may want to Specifically, the briefs. Septem- whether the district the court address having action come before 19, 1997, judgment appeal- final and defen- ber judge] consideration of [name of States, 61 light v. United able partial motion for [sic] dant’s content, pretrial filed shall be has been provides after the order pretrial order that its 5. The binding and shall not be supersedes the invalid and of no effect “including ... the attachments Court, any party specifically upon unless hereby pleadings amended to conform (Pretrial writing the Court." Any attempt authorized to reserve a hereto.... 12.) pretrial Order at any part order amend or add to (11th Cir.1995).” F.3d 20 brief, Plaintiffs court, later dismissed 21, 1998, April filed jurisdic- addressed the counterclaim without tion issue. Thus, question the narrow presented here appellate jurisdiction whether over Shortly a non- argument, before oral this Court summary judgment parties, notified the asking them to be famil- be created parties’ agreeing to iar with dismiss the recent decision in Construction the remaining counter- Aggregates, Ltd. v. Forest Commodities claim, so that can Corp., 147 F.3d 1334 Much partial summary judgment order before hav- argument, of the oral heard November try the remaining counterclaim. focused issue. essence, argue that the August 20 *4 dismissal prejudice without of the remaining II. DISCUSSION counterclaim transformed the district court’s May ruling 27 parties’ on the Question A. cross-motions Presented partial summary judgment into a final This case concerns whether the district decision of court, permitting thus May 27 order granting partial sum- parties the unfettered to an immedi- mary judgment is “final appeal- a decision” ate partial of the summary judgment able § under 28 U.S.C. 1291. Section 1291 order. provides, in part: relevant “The courts of question in answered Mesa v. Unit appeals ... shall have appeals States, (11th ed Cir.1995), 20 from all final of the decisions district courts Construction Aggregates, Ltd. v. Forest Com of the United States....” § 28 U.S.C. modities 147 F.3d 1334 This section is the basis for judg- the final 1998). cases, In both this recently Court rule, ment ordinarily which requires that all appeals dismissed similar jurisdic lack claims and issues a adjudicated in case be and held that over before appeal. a non-final order cannot be by created dis The partial district court’s summary judg- missing remaining the preju claims without order, by itself, was not a “final deci- dice. We examine each case in turn. § sion” under 1291. That May 27 order left

pending Plaintiffs claims for damages B. Mesa breach of contract in II Count and for attor- Mesa, In the plaintiffs brought a multiple neys’ fees and costs for litigious- “stubborn' count claim. 61 F.3d at 21.6 The district III, ness” in Count as well as Defendants’ court dismissed two the counts. Id. The counterclaim for fiduciary breach of duty. plaintiffs then moved to dismiss the remain ing voluntarily counts they so ap that could Subsequently, June 23 pretrial the order peal immediately. Id. The district court amended the pleadings pending left granted plaintiffs’ the motion and dismissed Defendants’ counterclaim for breach of fidu- the remaining prejudice. counts without Id. ciary Later, duty. August parties However, this Court refused to hear the stipulated to a dismissal that counterclaim appeal, holding, “[B]ecause plaintiffs never without The voluntarily sought or received Federal Rule of Civil agreed to dismissal that counterclaim 54(b) and, Procedure thus, certification never prejudice without in order to appeal par- decision, received a final plaintiffs had noth tial summary judgment order having before appeal.” Id. try entry counterclaim. After of the May order, the parties could have asked Mesa The decision concluded 54(b) “[rjesolution district court to issue Rule certifi- of this controlled cate, they but Instead, never did so. they Ryan v. Occidental Petroleum Corp., 577 prepared order, pretrial Cir.1978).” as ordered Mesa, F.2d 298 61 F.3d at 6. There are two Mesa decisions: Mesa Only v. United the first Mesa decision relevant to the States, (11th Cir.1995); F.3d 20 v.Mesa in appeal. issues States, United 123 F.3d 1435 offset sought an two counterclaims dant’s dismissed Ryan, 21.7 A F.3d at recovery. 147 damages failure complaint for plaintiffs of the

parts order dismissed sought consent plaintiff The action. a cause state Id. Both counterclaim. certification, first defendant’s was 54(b) which a Rule judg- summary partial sought volun- then then The vacated. but later ruled district court claim under ment. Id. his tarily dismissed pro- favor, holding Court unenforceable 300. The 41(a). plaintiffs sought liqui- defendant Fifth Circuit upon which agreed vision Mesa re- plaintiffs damages. Id. dated a “fi- considered maining subsequently consent A second a volun- decision” nal agreed that the entered, to the tary dismissal against plaintiff would again. filing those moving party Id. notes. promissory defendant Mesa, at 22. then defendant emphasized also expressly re- counterclaim second its aof absence “[i]n conclusion Id. The defendant re-file. right to served were certification, dismissals the earlier *5 appealed then (citing Mesa, 22 F.3d 61 at appealable.” not liqui- the issue plaintiffs favor in footnote, 303). In a 577 F.2d at Ryan, damages. Id. dated Elev- interim that other observed court Mesa to discuss failed decisions enth Circuit Ag appeal in Construction Dismissing the following dis- appeal permitted and jurisdiction, this Court lack gregates for then ac- however, missals; the Mesa from no final decision there was that held adhering to the necessity of knowledged the light of the defendant’s in appeal, to which 22 5. at n. precedent. Id. older counterclaim, its second ability re-file to prejudice. Mesa, to seek without parties failed Here, dismissed in been as which had appealing 54(b) argued to that prior defendant certification The at 1336-37. Id. the case. to disposed of partially require the to no sense order makes an “it (that is, the defendant’s the second in Mesa a claim litigating order The continue in the counts of the counterclaim) they two not re say dismiss were they to motion grant- here order at complaint. Id. plaintiffs place.” in the first bring to quired partial argument, rejected ed motion that Court This in performance specific on Plaintiffs requiring stating: “[W]e I. Count that litigation. [defendant] All continue to summary judg do in must this Mesa appeals in Similarly, remaining dismissed claims have its the dismissal ment after Court this case arrived v. West (citing Morewitz Id. remaining prejudice.” claims. any with without Mut. Protection Ship final Owners England no that in Mesa reasoned Court (11th Ass’n, 1361 entered, re- F.3d Indem. had been decision Cir.1995)). which was maining F.3d See resurrected. prejudice,

at Excep- Decision Implied Final D. Jeteo’s Aggregates Construction C. here, ad- concurrence parties, and in Con recently followed This Court ais a dismissal that vocate v. Forest Com Ltd. Aggregates, struction judg- implied support pillar “good Cir. 147 F.3d

modities disagree for the We Jeteo.” defendant 1998), plaintiff sued where the Jeteo found this Court reasons same The defen- notes. promissory several Mesa, banc); (en Cir.1981) decided Circuit cases recognized, Fifth As 7. Mesa n. 2. binding precedent at 21 1981 are before October Prichard, 661 City circuit. Bonner this exception inapplicable in Aggre- here, Construction cases, unlike party those seeking gates and Mesa. party same sought who dismissal of its remaining, claims below. exception “Jeteo allows an finality to the Therefore, argues, Plaintiff it had no control orders, ‘a when series consid of the manner in which the dismissal together, ered litigation terminate[d] the as ” place, counterclaim took either or with- effectively as a formal order.’ Construc out argument fails, however, tion Aggregates, 147 F.3d at 1337 (quoting because Plaintiff consented to the. Mesa, 21); Indus., see Jetco Elec. of Defendants’ counter- Gardiner, Inc. v. 473 F.2d 1228 Thus, claims. presents' this case the same 1973). (1) Jeteo involved two orders: facts as Aggregates, Construction where both granting order a motion plain to dismiss the parties consented to a prej- dismissal without tiff-appellant’s cause of against action one udice of all claims an attempt defendant for failure state cause of confer create a to im- action and for comply failure to. with the mediate appeal of an otherwise or- non-final long statute; (2) Texas arm a subse der. Id. at 1336. quent “agreed judgment disposing appel In Construction Aggregates, here, lants’ against the other two defendants.” . Court potential noted prob- co, at, Jet 1230. The Jeteo lem and offered the parties an opportunity to Court orders, concluded “two consid brief the issue. Id. at 1336. No Rule together, ered litigation just terminated [the] present certification in either case. Id. at effectively as would have been the case 1336 n. 2. cases, In 'both agreed to had judge gone through the mo dismiss without prejudice potentially merito- entering tions of single re formally rious claims so earlier non-final orders citing the substance of the earlier two or *6 could be appealed. ders.” Id. at Importantly, Jeteo, 1231. the two nothing orders left that could be re Moreover, it is well settled this id.; filed. See Aggregates, Construction 147 Circuit that to a suit agree cannot to F.3d at 1337. grant this jurisdiction. Court appellate Cons truction Aggregates, 147 (citing F.3d 1336 In Aggregates, Construction this Court ex- Haney v. City Cumming, 69 F.3d plained that Mesa Ryan rejected and had (11th Cir.1995)). 1101 n. 4 teaching use of the exception because, Jeteo, Jeteo Construction Mesa, Aggregates, is plaintiff had no claims left if appeal his that dismissals, granted failed, without whereas in Ryan, Mesa and plain- prejudice, are not final decisions themselves tiffs claims were dismissed preju- without and also do not transform an partial earlier dice. Aggregates, Construction 147 F.3d at partial dismissal summary or judgment order Thus, appeal if the failed in Mesa a Here, into final decision. Construc Ryan, .in could re-file other claims. Aggregates, possible it is Id. dismissed without will be re-filed. case, Mesa, Ryan, Con- precedent Our guides our conclusion that struction Aggregates, the exception Jeteo is here, exercising jurisdiction “would under inapplicable. policies judicial mine the efficiency, avoid piecemeal litigation, and district court E. Plaintiffs Contention independence that are the basis the final Plaintiff attempts to distinguish rule.” Aggregates, Construction and Construction Aggregates by arguing that 147 F.3d at 1336.8 8. This is not a case 1991) where the during have (permitting appeal proceed to when claims appeal ability renounced their proceed to on were renounced appeal several months after the remaining their appeal filed). claims after the decid Perez, Scarbrough ed. (6th See v. 870 F.2d 1082 During argument, oral represented Plaintiff for 1989) Cir. (permitting appeal proceed af tire first time that agree Defendants would ter counsel argument); abandoned claims at oral counterclaim, renounce their only Devoe, Tiernan v. (3d 1031 if prevail Defendants were to regard- on that have arguments policy similar to Rule Ryan’s F. considered, rejected made, already been the wisdom questions concurrence 54(b), and Rule §of enactment in the reconsidera- en banc invites rule and

Ryan’s policy determinations represent which precedent, longstanding Circuit’s tion of this only a be jurisdiction shall over appellate overruling Mesa necessarily means which an to allow whether and that final decision The invitation Aggregates. and Construction trial decided appeal is best interim several reasons. for declined should court. sound, consistent First, Ryan’s for provides §with a mis- Third, on rule is not based decision,” and “final jurisdiction over interpretation of proper law but on take of Chappelle circuits. by two other followed a final states that The concurrence Corp., 84 Communications v. Beacon litigation “ends the one that decision (2d Cir.1996); Rocky Mountain Cook the court nothing for merits” and “leaves Note Bank Although judgment.” execute to do but significant- Second, Ryan’s rule repealing do nothing further may have the court court, 54(b). sua district ly erodes preju- stipulation dismissal when motion, certified sponte or filed, termi- litigation has been dice is delay directed no reason there was stipulation is the merits because nated on judgment on Plaintiffs entry of final party. ruling to either adverse counterclaim and Defendants’ complaint Instead, stipulation Although another interference. tortious just the parties does filed pending, the remained counterclaim claim for leaves the dismissed opposite —it immediately the able would be then day. another judgment or- by the concurrence cases cited The two court to allows der. Rule on a mistake rests proposition indepen- make an and to docket control Mortgage Net law, National Kirkland v. exception to whether an determination dent (11th Cir.1989), and work, Inc., in an warranted rule is decision the final Inc., F.2d 601 Chip, circum- Mr. appropriate LeCompte v. case under individual (5th Cir.1976), dismissals involved stances. *7 motion by upon court prejudice 54(b) Rule requested never a parties 41(a)(2). In con Rule plaintiffs under only specu- can the concurrence so certificate trast, stipulation a addresses this case that, granted. have not been it would late by parties prejudice without abrogation conjecture is that not But what is Kirkland, 41(a)(1). defen In under Rule 54(b) and will subvert Rule rule Ryan’s plaintiffs motion consent did not dant court’s, trial parties’, not the result fact prejudice, and for dismissal appealed orders are controlling what interim and for dismissal for reconsideration moved the concurrence example, as For and when.9 The Kirk 884 F.2d at prejudice. with countervailing concern acknowledges, one “voluntary dis that a Court’s statement land by litigants appeals repeated specter of “the 41(a)(2) under Rule prejudice missal without appeal and in order to claims who dismiss defendant],” appealable [the is final and in another them on remand then resurrect F.2d at LeCompte. entirely on relied argues that liti- The concurrence action.” LeCompte Court Specifically, 1369-70. necessarily path, that take that gants will ordinarily plaintiff cannot a reasoned that broadly, sweeps too Ryan’s rule dismissal, 41(a)(2) be- Rule a appeal from arguments These Ryan’s policy. rule is bad rule, Ryan's agreed with Circuit has 9. The Tenth claims. This of contract breach Plaintiff’s voluntary dis- plaintiff who seeks finding a affect our does renunciation conditional suffering an after remaining claims missal of his basing appellate jurisdiction analysis attempted ruling to subvert "has adverse purposes of 's it also would undermine 54(b).” Rocky Cook requirements of Rule rule. Bank Note. Mountain cause dismissal on its own motion “does not ease and others like it put have it: the rule qualify involuntary an judgment as adverse speaks action,’ dismissal of ‘an so far is concerned.” 528 not a 41(a)(1).” claim. Fed.R.Civ.P. Nevertheless, according Le- reinforces our view proper way to Compte, Kirkland, applied by a defen- appeal seek 54(b) here was to obtain a Rule opposes dant who the dismissal has suffered certificate and not to appellate jurisdic- craft an adverse final appeal. through 41(a)(1) a Rule dismissal with- The reasoning of Kirkland and LeCompte out stipulation does not extend to a of dismissal Fourth, disagree we with the concur- prejudice 41(a)(1), under Rule where rence’s contention Ryan’s rule encour- all In consented. such a dis- ages pointless district litigation. missal, In- there has no involuntary been ad- stead, if a Rule denied, certificate is verse against any party, and there- litigants rule forces to make hard fore has appealable there been no final order. choices seriously Indeed, evaluate their 41(a)(2) cases. unlike Rule requires must assess the court, 41(a)(1) likelihood of an order of a Rule states that adjudicated reversal of the appeal claims on upon filing of a stipulation signed by all versus the likelihood of parties, success on the re- no order of necessary. court is Fed. maining claims at trial. While some R.Civ.P. 41. claims close, in lawsuits axe many are not. Liti- itself, LeCompte permitting while plain- gants often have to make much more difficult tiff to appeal from its own motion to dismiss choices in the complex course of litigation. 41(a)(2), under Rule is limited to a subset of order to rulings on some 41(a)(2) dismissals. Where the district claims, party may settle the remaining placed stringent conditions claims some fashion and dismiss them with plaintiffs ability to re-file its dismissed prejudice.11 Such a might settlement even claims, the Court in LeCompte reasoned the incorporate high or low amount on the re- were dismissals better treated as dismissals maining claims dismissed prejudice, with purposes determining contingent upon the appeal. outcome appealability. 528 F.2d at 603. The dismiss- notes, theAs concurrence perhaps the re- al here under Rule maining not winners on their mer- 41(a)(1), on consent condition, and without its, but only offered other tactical advan- clearly beyond scope of LeCompte. tages. A party seeking either has This is not a case party where the seeking give up advantage that tactical gain appeal opposed a dismissal without finality benefit of or has to convince 41(a)(2). Thus, under Rule we need not de- party fact, other to do so. In options cide the Ryan’s, wisdom of those resolving the dilemma faced *8 circumstances.10 only are endless and limited the settle- As the astutely points out, concurrence creativity parties. of the “part of conceptual difficulty here and may elsewhere arise from the Fifth, fact that Rule Ryan’s rule permanently does not 41 is not meant for parties the use the deny appeal, this an asserts, as the concurrence Mesa, Aggregates, Construction pellanl's and this case remaining without prejudice. appellant (1) involve an who suffered an adverse Rocky Cook v. Mountain Bank Note decision, (2) 147, non-final subsequently who (10th Cir.1992); either Chappelle v. Beacon requested prejudice dismissal without under Communications 41(a)(2), stipulated Rule or to (2d Cir.1996). dismissal without prejudice 41(a)(1), under remaining of the However, claims. none these cases involves a single, 11. Dismissing a claim party situation where the appealing an adverse purpose making prior final a ruling opposed subsequent ruling separate adverse on a and distinct prejudice of the party's remaining other claims. dismissing different from an complaint entire Other apply Ryan’s circuits also rule where with versy no leaves case or contro- appellant suffers an adverse appeal. non-final deci- to See Druhan v. American Mutual subsequently sion and ap- Life, moves to dismiss the 166 F.3d 1324 III. Instead, CONCLUSION case. like this in circumstances strategic an appeal party a denies what by Construction is controlled This case attempting to makes appellant an choice Thus, Mesa, DIS- Ryan. we and Aggregates, dismissing, or appellate craft jurisdiction. appeal for lack MISS this dismissing, party’s opposing agreeing to the prejudice in remaining claim a over non-final decision concurring: an adverse appeal specially to COX, Judge, Circuit craft attempt to such When claims. other majority under agree I with the to the fails, is returned the case Corp., 577 Petroleum v. Occidental to seek may and court district (5th Cir.1978), progeny this and 301-02 the claim reinstate to and the case reopen this jurisdiction over appellate court lacks district The prejudice. voluntarily dis- appeal because reopen. request to deny such a I claims without pending for that missed may account However, however, suggest to jur- separately, write craft attempting to before risk case in this presented attempt jurisdictional issue ease, parties’ In this isdiction. per- simply rethinking. Ryan’s rule —which and needs the face of made litigants of good-faith calcu- strategic manently strips and some many represents one and legally unsound litigation. As the concur- to their lated decisions —is bright-line policies. important concedes, “this circuit’s disserves rence predictability.” fosters followed has Lastly, this Circuit Background I. Any pro- twenty-five years. for almost

rale here, Trea- Michigan’s State The arguments engender policy rule will cedural part- Barry surer, and limited sued Harold exception. rule is no decision final and the es- Barry) (collectively after real nership known rule is well decision The final complaint soured.1 deal tate investment follow, clear, easy to It longstanding. counts: Count in three two claims contained avoiding piece- efficiency, judicial promotes spe- sought contract alleged I breach of rule as importantly, Most appeals. meal pur- agreement to anof performance cific 54(b), with Rule today is consistent it stands partnership; a real-estate interest in chase an poli- statutory language and to the is faithful con- same breach of realleged the Count II the dis- and allows underlying cies III damages; and Count tract, sought dockets. of their to retain control trict courts § 13-6- attorney O.C.G.A. sought fees “implied expand the Jeteo to It unwise litigiousness.” damages for “stubborn II as rale,” as the concurrence two counter- Barry and asserted answered it, exception, as Construc- styles Jeteo interference was tortious claims. first it, stipulation of calls Aggregates second, a relations. with business under Rule dismissal without on the rested breach-of-fiduciary-duty 41(a)(1) entry of parties after the by all filed Treasurer, by pre- State possibility pretrial order. Michigan sued here, consequences. they tax him adverse are at issue 1. While the merits interest; conveyance point Barry description out that force if a brief worth is not meritless. permanently barred Barry two of several Michigan were Treasurer had failed tender *9 Barry The partners because partnership sole because, whose a real estate the according to price purchase and $1 Michigan the building. held office asset was an court, Barry repudiated the had partnership and the in the share of interest lion's convey interest. by refusing his to agreement preferential right certain treatment. had the 1990s, building’s de- early value had In clined such that litigation generally shall expenses of 2. "The partners the interests of the damages; where part of the as a allowed be Michigan’s prefer- Michigan (given other than made pleaded and has plaintiff specially has partnership agreement) were ences ... has defendant where the prayer therefor and investment, Michigan protect its worthless. To jury may allow litigious stubbornly ... been de- purchase, on sought mand, to exercise 1982). (Michie § 13-6-11 O.C.G.A. them." Barry alone partners’ interests. the other brought have because it would at the sale balked vailing I, on the claim asserted in Count dental Corp., Petroleum would partnership-agreement rights Cir.1978) exercise Jeteo, (asking, based on wheth- Barry’s harm. er a voluntary qualifies as an order disposing action). part of an proceeded The case to motions for sum- claim that judgment here does not dis- mary judgment. The district court (or pose abandoned) that was not is the summary judgment against the State Trea- one that was voluntarily Hence, dismissed. against surer on Count I and Barry on the the narrow issue is whether voluntary left, tortious-interference claim. What was dismissal without is, of that claim therefore, was the State Treasurer’s Count judgment like the based on a summary judg- II breach-of-contract claim damages, order, good pillar to support implied State Treasurer’s litigiousness” “stubborn final under Jeteo. fees, attorney claim for Barry’s breach- of-fiduciary-duty claim. The “stubborn liti- Under precedent, this circuit’s the answer giousness” claim was not mentioned no. “[VJoluntary dismissal [the plain order, pretrial thus was abandoned. tiffs] last allegation substantive ... cannot Count II implicitly disposed been regarded terminating litigation be summary of in judgment order, since its tween parties.” these Ryan, 577 F.2d at claim the same concerned breach of contract Ryan 301-02. implies two reasons that the I; event, in any Count Count II was voluntary dismissal without is not pretrial well, omitted from the order as final. The first is a little puzzling. Parties it too was thus abandoned. voluntarily who dismiss prejudice, then stipulated to dismiss the reasons, Ryan ordinarily cannot appeal be breach-of-fiduciary-duty claim preju they cause have not suffered an adverse rul 41(a)(1)(h). dice under Fed.R.Civ.P. Dis therefore, ing; dismissal is not missing quite understandable —the final. differently, Put according to Ryan claim’s success was tied to the merits of the. ordinary basis of jurisdic claims that disposed the court tion is judgment, and if plaintiff judgment. Dismissing without prejudice cannot for a reason unrelated —even was also a strategy, reasonable because finality must not be —then reversal vacatur would revive final. second reason is that a volun clerk, hopes of success on the claim. The tary dismissal without suggests voluntary dismissal, endorsed the entered fight goes on. There is always the judgment, and closed the case.3 The State possibility will refile the Treasurer timely filed a appeal. notice of court, same claim in the same generat thus sponte has sua that it concluded appeal. States, future Mesa United lacks appeal. over the 61 F.3d 20 1995), Cir. and its offspring Aggregates, Construction Ltd. v. Forest Com II. Issue modities Broadly, the issue 1998), is whether there has march Ryan’s path down and add that been a “final decision” such that 28 plaintiffs ability U.S.C. to refile the dismissed appellate jurisdiction. 1291 confers promotes There piecemeal appeals judi single is not a judgment here disposes inefficiency. cial Nonetheless, all claims. under still-valid for law, mer Fifth Circuit a series orders III. Discussion disposing every together equate claim can judgment. to a final See jurisdictional Jetco Electronic issue addressed in Industries, Gardiner, Inc. v. revisiting needs wrongly it decid- (5th Cir.1973); also see v. Occi- A ed. current circuit split illustrates the *10 judgment oddly error, 3. The only Barry's however, mentions mo- summary judgment and the or- summary judgment; tion for it does not mention der is clear—albeit in a footnote—that dis- summary judgment against Barry granted summary on first trict judgment against court appears counterclaim. This to be a Barry clerical mere on its first counterclaim. 18 States, 324 v. United judgment.” Catlin remains rule.4 Ryan’s debatability of 633, 631, L.Ed. 911 233, 89 229, 65 S.Ct. law, and U.S. the Second and good Fifth Circuit dismissal, without (1945). even voluntary A follow apparently Tenth Circuits district prejudice, fits definition —the theOn has in Mesa.5 circuit strictly as this Pre action. in that job is finished court’s Eighth Circuits and hand, the Sixth other when precedent so holds post-Ryan and rule, Circuit and the First rejected the have See action. the entire plaintiff dismisses implicitly.6 Seventh so has done Network, Mortgage v. National Kirkland with sub- compromised Circuits Ninth Cir.1989) (11th 1367, Inc., 1369-70 884 F.2d only if jurisdiction there

jective approach: volun- (“The granting manipulate the not intend did under prejudice tary without dismissal appears to also Third Circuit system.7 41(a)(2) by defen- appealable final and it conclud- approach; case-by-case endorse Inc., Chip, 528 ...”); LeCompte v. Mr. existed, dant. that case in one ed Cir.1976) (“Where (5th 601, voluntarily F.2d 602-03 that were the claims only because his plaintiff to dismiss allows trial court time- prejudice would be without dismissed judgment, prejudice, without future, For the fol- action anyway.8 barred pur- judgment for course, final qualifies as a Sixth, and First reasons, Eighth, lowing Federal 5 Moore’s (quoting appeal.”) poses of ground. firmer stand on Circuits (2d ed.1975); ac- 41.05[3], ¶ at 1068 Practice Miller, R. Wright Arthur A. & 9 cord! Charles mistake law. on a Ryan rests A. (2d § ed. 2376 & Procedure Practice Federal : why a puzzling Supp.)). It is & 1998 1995 voluntary with- First, 41 dismissal a Rule prej- without voluntary of an action dismissal A “final a final decision. out final, a dismissal while such udice should “one 1291 is 28 U.S.C. decision” claim, others while one that removes merits litigation on the which ends otherwise, final. disposed of but execute do nothing for the leaves 538, Co., (8th Cir. 540 F.2d Auto 939 Thomas an inter Incidentally, circuit suffers from 118, Inc., NLO, 120 Cochran, 1991); 825 F.2d Gaining v. Hicks A. See Rebecca nal conflict. Cir.1987). (6th “Manufacturing" a Final Appellate Review Periph Voluntary Through Dismissal Judgment 979, (1997). Claims, 984 L.Rev. 48 Mercer Toolworks, eral Dannenberg v. Compare Software Leasing, Borg 806 F.2d Warner v. In Studstill Cir.1994) (9th 1073, (refusing Inc., F.3d 1075 16 Cir.1986), 1005, (11th court concluded 1008 agreement dis parties' jurisdiction because without plaintiff’s dismissal they contemplated further liti that miss showed after sum prejudice of the remained claims claims), Alloy v. gation dismissed Horwitz judgment. See id. mary judgment a final created (7th 1431, Co., 1435-36 957 F.2d Automotive ("After summary judgment plaintiff had Cir.1992) (refusing jurisdiction because record to liti She have continued two choices. had the district showed that an ultimate gate Title VII and had essentially jurisdiction over to create schemed rulings, have aban or she could of all States v. interlocutory appeal), United Kauf exchange for the VII claim in the Title doned Cir.1993) ("H 884, (7th mann, F.2d 890 985 orw ruling of the an immediate principle dismissal did not announce itz claim.”); Employ also Black v. Broward tort see deprives a without of some claims 1311, Admin., Training 1312 846 F.2d ment & of all other the merits Studstill)-, 1988) (following Oswalt v. Cir. Division appeal.”), and finality purposes of 1980) 191, Inc., (5th Cir. Scripto, 194 616 F.2d Suscy, 538 v. Amalgamated Union Transit 241 (voluntary does Cir.1976) (exercising 1264, &1266 n. 1 F.2d rulings). prevent review other volun though one claim jurisdiction even and Robert prejudice), tarily dismissed Chappelle Communications v. 5. See Beacon 530, Inc., F.2d Reynolds, 749 Witter v. son Dean 1996); 652, (2d Rocky Cir. Cook 84 654 1984) (holding ex 147, Bank Note Mountain judg court entered ists because (10th Cir.1992). voluntarily though claims were some ment even prejudice). Employee Plan v. 6. See Geils Band J. Benefit Inc., Shearson, Barney Smith (N. Y.), Epsilon Kappa v. Delta (1st Cir.), denied, 8. See Fassett 117 S.Ct. 519 U.S. cert. (3d (1996); Chrysler Corp. v. Motors 136 L.Ed.2d

19 Ryan B. policy. is also bad reasons, these the Tenth Circuit has conclud ed that in these cases the district court has legal analysis But abstract is not the end jurisdiction. lost See Cook Rocky v. Moun matters, too, inquiry. Policy of the sculpt Co., tain Bank 147, Note 148 the final rule. The definition hand, On the other if judg of “final decision” is flexible: we should con final, is not must remain in “pragmatic[ally]” strue it to secure the “ the district court if it anywhere. exists ‘just, speedy, inexpensive determina is what the second appeal in implies. every tion of action.’” Brown Shoe Co. v. States, See Mesa v. United 1435, States, 294, 306, United 370 U.S. 82 S.Ct. (11th Cir.1997). 1437 n. 3 But 1502, 1513, present (1962) for L.Ed.2d 510 (quoting 8 “ purposes, it does not 1). matter whether the Fed.R.Civ.P. ‘[The final decision rule] district jurisdiction; court has lost emphasizes the bad re deference that sults follow way. either judge courts owe to trial as the individual initially upon to many ques called decide 1. may permanently deny appeal. tions of law fact that occur in the course addition, of trial.... the rule inis accor First, if we conclude that the district court dance with policy the sensible “avoid[ing] jurisdiction, has lost Ryan’s rule is draconi- just the obstruction to claims that would an. For the crime of presume what we to be permitting come from the harassment and crafting premature appellate jurisdiction, the cost of a separate appeals succession of from litigant is denied the by right forever rulings the various litigation to which a may' 1291 bestows. Once the district court rise, give from its entry initiation to judg relinquished has jurisdiction, litigant has ’ ” ment.” Biard, Cauwenberghe Van v. 486 way no sure obtaining finality that would 517, 3, 1945, 3, U.S. 521 n. 108 S.Ct. 1949 n. permit review of the district court’s order in (1988) 100 L.Ed.2d 517 (quoting Firestone this action. If litigant begins a new Tire & Risjord, 368, Co. v. Rubber 449 U.S. action voluntarily with the claims, 374, 101 669, 673, (1981) S.Ct. 66 L.Ed.2d 571 proceeds that second action judgment, (in quoting turn States, Cobbledick v. United litigant of course cannot raise issues from 323, 325, 540, 309 U.S. 60 S.Ct. 84 L.Ed. the first action on in the second ac- (1940))). Ryan’s 783 rule does not serve the tion. The Federal Procedure, Rules Civil just claims, interests of resolution of respect moreover, provide do any explicit mecha- busy courts, for the judicial effi nism for “undismissing,” after judgment, any ciency. voluntarily dismissed claims so that the liti- gant ultimately appeal.9 could

Why Ryan’s rule is a depends bad idea on' whether the district relinquished has may Or finality inhibit other jurisdiction in these cases. question That purposes. hand, debatable. game On one is over in the district court. All gone, If, the claims are hand, on the other we assume that the and the clerk judgment; has entered district court jurisdiction, retains litigant Arguably, may provide Fed.R.Civ.P. such conceptual difficulty Part of the here else block, however, stumbling relief. A cases where arise from the fact that Rule 41 is not such as this stipulated one where meant for the use the in this case and dismissal, voluntaiy 41(a)(l)(ii) a Rule put others like it have it: speaks the Rule stipulated dismissal need action,” not be order of the dismissal of “an not a claim. provide court. any do rules 41(a)(1). mechanism likely, Fed.R.Civ.P. proper Most parties’ the court stipulation to reconsider way drop claim without is to (as opposed orders), questiona to its own so 15(a). See, it is complaint amend the e.g. under.Rule litigant ble whether unilaterally one Co., could obtain Gobbo Farms & v. Poole Orchards Chem. a final even reopened (10th Cir.1996); after case F.3d Corp. Exxon v. 60(b). under Rule Davenport- Maryland McKenzie Cas. Cir. Cf. Home, 1979). Harris (One Funeral whether, speculate 1987) (district authority Ryan, to dis this court lacks over actions in miss claim when complaint drop tlie was amended to some already stipulated the dismissal of the claims that could later assert in prejudice). action.) another *12 claims to pursue all limbo: landing Ryan seek appeal: he could of avenue may have an forcing par- 54(b). But the merits. disposition on Fed.R.Civ.P. under entry judgment 54(b), the work on imposes Rule more so judgment ties to do entry of But inefficiency. not judgment, is a final promotes from unlike an district courts rather, is, to committed It legitimate right. ignores the matter of a is This because discretion, the cau -with a volun- may opt the district litigant that a reasons 54(b) Rule appropriate that cases further prejudice over tary dismissal City v. Ebrahimi rare. See are prejudice. with or a dismissal proceedings 162, Educ., 114 F.3d Bd. Huntsville claims obviously, the demise some Most Cir.1997). (11th For exam- the rest.10 “orphaned” may have appeal, the ele- may an an litigant remaining obtains share ple, if the Even finality. claims; at a cost to a conclusion comes route with the resolved an notwithstanding even because, support is the com-

That to exists no evidence pending still the case is appeal, on affirmance on may the tocsin sound element mon ways get rid of to are Maybe there remaining below. perhaps claim. Or remaining the volun- case. When ever-pending an such counter- aor “defensive a setoff claim'was is court tary dismissal not would claim,” the defendant one that order and order, revisit could court bring had the to have bothered v. Hardin See prejudice. with dismiss (like maybe the claim fight. a Or picked Cir.1995) (dis- 934, 938 Hayes, claims) on the not a winner was some RICO inter- may amend reconsider trict court advantages merits, tactical other offered but judg- any time before locutory orders discovery chance (such a wide-ranging or by stipulation, ment). is dismissal When opponent). to blacken authority to dismiss however, court lacks v. pursue case, See McKenzie no it makes sense the action In each Home, Funeral disposition Davenport-Harris now, if the further the claim Perhaps the 930, 935 or vacated reversed is claims resolved Rules “undismiss” —the stipulate could usefulness claim’s appeal, the if the right explicit provide no such opponent —but again. rise merit or sits indefi- agree, the action parties cannot impeccably an seek orphaned claim could inAnd court’s docket. nitely moving district court final decision where real estate this one a case such But it un- dismissal. could be involved, that real estate the title to busy district on the necessarily work foists affecting litigation clouded forever economy judicial to force and disserves court in the district pending remains the title now-pointless claim pursue party Furthermore, preclu- neither claim court. will. against his a second would preclusion bar sion nor issue claims, since asserting action appeals? piecemeal about what But judgment. have no final would action Co., Sears, & v. Roebuck Twigg See disadvantages Ryan’s these Against all Cir.1998) (claim preclusion); 1222, 1225 countervailing con- rule, arguable an there is Clearwater, Chem. Inc. Ashland J.R. ap- repeated the specter cern. That (issue (5th Cir.1996) preclu- in order by litigants who dismiss peals sion). litigant could sue That means on remand them then appeal and resurrect appeal. future generate again and concern does action. or in another already rule; built- justify there encourages pointless district- of conduct. to this kind in deterrents litigation. prejudice is Voluntary way litigants one there Of course litigant’s all, not, from the a freebie by right, and avoid after preserve I. Once performance in Count above, sought specific presents good this case explained 10. As had no State Treasurer of fi- concluded example: Barry's breach counterclaim for future, Berry would then right to exercise duciary explicitly the State duty based on duty. fiduciary any breach suffered never have he for which exercise of Treasurer’s point litigant States, of view. When the refiles the 305-06, 370 U.S. 82 S.Ct. claims, he could face (1962). meritorious statute-of- 8 L.Ed.2d 510 A bright-line See, arguments. limitations e.g., preferable Fassett v. therefore to determine *13 (N.Y.), Kappa Epsilon Delta 1150, whether exists or not. See Budi (3d Cir.1986). nich v. Delay inevitable, Becton Dickinson & 486 U.S. moreover, 196, 202, 1717, in 1722, delay may memories S.Ct. 100 L.Ed.2d documents, (1988) (“This fade, may practical disappear, approach and wit- to the matter may finality] [of nesses suggests die or scatter. Refiling entails what is of importance expenses preservation well the here is ... and hassles of an opera entire- tional ly action, consistency new (re)discovery predictability from in the n applicatio 1291.”). overall § short, motions. it is hard to cir bright-line cuit’s imagine litigants rule fosters routinely predictability would dismiss and streamlines review. But bright meritorious claims without prejudice simply line drawn the wrong place; obtain an appeal dismissals other claims. with

out prejudice should be proper considered a component of a final decision 5. Jeteo. jur- an overbroad deterrent to manipulation. isdictional TV. Conclusion Even if Ryan’s rule were needed to ad- For the foregoing reasons, this court dress manipulative refiling, concern it should rethink en banc the issue this case sweeps broadly. Ryan’s logic too does not Ryan present. We especially must keep jurisdiction only bar over appeals by cunning mind, 1291, interpreting that it con- litigants. Ryan’s Because rule rests on the appeal by fers right. See Digital Equip. that a voluntary conclusion dismissal without Corp. Direct, Inc., Desktop v. 863, 511 U.S. final, is not it bars S.Ct. 128 L.Ed.2d 842 following scenario, A well: (1994). The State Treasurer is’ entitled to wishes to possibility avoid the appeal, review of the district court’s construction of prevail should she in the To her lawsuit. one the partnership agreement, and in the cur- arguably claim, therefore, meritorious she rent state of the law the may Treasurer attaches second that she knows to be get never such review. There is no substi- meritless. At some time before the defen- tute by right, and depriving the answers, dant she dismisses the second claim unjusti- Treasurer of it for reasons is prejudice, as she do fiable. 41(a)(l)(i). under Fed.R.Civ.P. Now if she prevails on her first the defendant

cannot any judgment would final. Ryan, Under strategy

would work. Whatever the pun- wisdom of

ishing crafty litigants, it is justify hard 'to

punishing Larry their RANEY, victims. Petitioner, in one respect: sound clarity. PRISONS, FEDERAL BUREAU OF Ryan generally While against runs final- Respondent. judgment-rule policy, judicial it serve does 97-3469, Nos. 98-3043. efficiency in respect: provides one it Appeals, United States Court of bright-line rule. Seventh Ninth Cir- Federal Circuit. practice cuits’ combing the record for evi- dence manipulative intent and the Third Jan. analysis Circuit’s potential future affirma-: (such five defenses as the statute of limita- tions) waste spent resources better Roth, Mark D. Counsel, General American appeals. merits of Jurisdiction is a threshold Federation Government Employees, of matter. See Brown Shoe Co. v. DC, United Washington, petitioner.