You have put forth your best, but the judge essentially gutted the most valuable part of your case. The decision is interlocutory (meaning it does not decide the entire case) and does not otherwise provide any grounds for an immediate appeal. You would prefer not to move on with your less valuable case to trial, and then once appealed, face the prospect and cost of a second trial.
Are there creative avenues for the decision to be reviewed? You could ask the judge to reconsider, but that option has its limitations. See my last post: Is Reconsideration An Option?
Another option might be taking a voluntary dismissal, which would end the case and make the judge’s decision final. But does that actually allow you to take an appeal? Some recent cases in the Fourth Circuit Court of Appeals and the United States Supreme Court both concluded no.
In Microsoft Corp. v. Baker, 137 S. Ct. 1703 (2017), https://caselaw.findlaw.com/us-supreme-court/15-457.html, the plaintiffs brought a putative class action against Microsoft based on an alleged design defect in the Xbox. The Supreme court examined whether 28 U.S.C. § 1291, which empowers federal courts of appeals to review only “final decisions of the district courts,” would permit review of an order granting or denying class certification. Id.at 1706. When plaintiffs’ class certification motion was denied and they were denied permission to appeal, the plaintiffs moved to dismiss their case. The court granted their motion to dismiss, and the plaintiffs appealed. The Supreme Court held the plaintiffs’ voluntary dismissal did not qualify as a “final decision” pursuant to § 1291. The Supreme Court observed that the requirement for final judgments “preserves the proper balance between trial and appellate courts, minimizes the harassment and delay that would result from repeated interlocutory appeals, and promotes the efficient administration of justice.” Id.at 1712. Allowing plaintiffs to appeal under these circumstances would undermine that delicate balance.
In Keena v. Groupon, Inc., 886 F.3d 360 (4th Cir. 2018), http://www.ca4.uscourts.gov/opinions/161873.P.pdf, the plaintiff brought a putative class action against Groupon based on claims about Groupon’s reimbursement policy. Groupon demanded that the parties arbitrate, and the district court agreed. Keena’s counsel recognized that the district court’s decision was interlocutory—thus not allowing an immediate appeal—and moving forward to arbitration would be too costly in comparison to potential recovery. Keena moved to amend the district court’s order requesting that the court certify its decision for an interlocutory appeal or dismiss her complaint. The district court elected to allow Keena’s request for dismissal. Keena then appealed from the dismissal order. The Fourth Circuit dismissed Keena’s appeal concluding that “the final-judgment rule will not tolerate” Keena’s “creative ‘voluntary-dismissal tactic,’” where “Keena’s lawyer sought to preempt the denial of interlocutory review by voluntarily dismissing Keena’s complaint with prejudice.” Id.at 364. Keena’s appeal was dismissed.
Appellate courts require final judgments ⎯ meaning that “the whole case and every matter in controversy in it must be decided in a single appeal.” Baker, 137 S. Ct. at 1712. Further, they recognize the “longstanding principle that a party is not entitled to appeal from a consensual dismissal of her claims.” Keena, Inc., 886 F.3d at 365. So, where a case is not at its end, voluntary dismissals will not create an avenue to appeal. It’s time to go back to the drawing board and figure out a strategy for moving forward with the case.
Phoebe Coddington has litigated hundreds of cases and appeals all over the country. She has represented large and small clients from large banks and electric utilities to small companies and individuals. Ms. Coddinton has handled all types of cases, but business litigation comprises the majority of her work.