by Terry W. Schackmann¹ and Barry L. Pickens²

A growing body of federal precedent on a little-known rule of appellate procedure threatens an unwelcome surprise to unwary litigators: Parties who, during litigation, dismiss claims without prejudice under Rule 41(a) of the Federal Rules of Civil Procedure may thereby lose any right to appeal at the litigation's end. The problem is one of finality. Used to simplify a case or eliminate claims of lesser merit, dismissals without prejudice have the potential to undermine the finality of any judgment in the case and thus destroy forever a party's right to appeal. Unknown to many trial court practitioners, this "finality trap" exists in various forms in all federal circuits. While courts across the country enforce the rule differently, and thus render the right to appeal across our uniform federal system anything but uniform, the rule is a serious threat to the uninformed.

Illustration by way of example is helpful. Assume that you represent a plaintiff in a federal district court that has just entered summary judgment against you on the four best claims of your five-count complaint. You know that you cannot appeal because the order does not dispose of all claims in the action,³ yet you do not want to go to trial on the one remaining claim because the potential damages available do not justify trial alone. A dismissal with prejudice, however, would forego that claim for all time and give away too much — the claim has jury appeal that would be valuable at trial if you can win a reversal on appeal and reinstate the claims you just lost. With limited options,⁴ what do you do?

You would not be the first seduced by the temptation: Dismiss the remaining count without prejudice, under Rule 41(a), and thus eliminate the pending claim that bars appeal. If you win on appeal and obtain a remand, you plan to reassert the claim in the trial proceedings; if you lose on appeal, you were not interested anyway. The approach seems attractive, so what is the problem? In most federal courts, this tactic forfeits your right to appeal any ruling in the case — ever.

Under often-ignored appellate principles, the dismissal of your fifth claim without prejudice destroys the finality of any result in the trial court and thus undermines jurisdiction in the Court of Appeals, even over the summary judgment that rejected four claims with prejudice. Fully 10 of the 13 federal circuits have so held.⁵ Because your dismissal of the fifth claim left nothing pending in the trial court, the lower court also lacks jurisdiction to reopen the case and permit a new appeal from the judgment on your four principal counts.⁶ Your action is thus depending neither on appeal nor in the trial court. You have both lost your case in the trial court and foreclosed any appeal.

At this point you should be desperate. While the dismissal without prejudice permits reassertion of your fifth claim elsewhere, this is small consolation — you already had decided that pursuit of that claim on its own was not worth the expense. You cannot reassert elsewhere the four claims lost on summary judgment because that ruling disposed of the claims with prejudice — the res judicata effect of the summary judgment bars reassertion of the claims.⁷ And you cannot now appeal the summary judgment disposing of these four claims because nothing remains in the trial court from which you can appeal. "A less equitable position is hard to imagine."⁸ How did this happen?

Your case has just foundered on the final judgment rule, a fixture of federal appellate practice since the advent of federal jurisdiction⁹ and a "labor saving device which causes more labor than it saves."¹⁰ This rule enforces the principle that, absent statutory or judicial exceptions,¹¹ parties can appeal only from final judgments. Finality results only when the decision below "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."¹² Dismissals without prejudice, which permit parties to refile claims, do not finally resolve those claims and thus cannot, absent unusual circumstances, support appeals.¹³ Actions in which a party has dismissed without prejudice any claims — including counterclaims — may not produce a final judgment at the litigation's end.

The rule seems obvious in a single count action: If the trial court dismisses your action without prejudice, you typically cannot appeal; you simply re-file.¹⁴ The rule operates unexpectedly, however, in multiple claim actions, where a party dismisses one claim without prejudice while the court resolves others on the merits. In most courts, a multiple claim action lacks final resolution for appeal where any claims dismissed without prejudice remain unresolved.¹⁵ Courts reason that, under Rule 54(b), the substantive resolution of some of the claims by court order does not resolve the remaining claims and is therefore not appealable.¹⁶ Dismissal of those remaining claims without prejudice, however, does not finally resolve those claims, because the party can re-file them. There is thus no final determination of all claims on the merits; the dismissal without prejudice undermines the finality necessary to render the ultimate judgment appealable. Plaintiffs may face the same result just by consenting to a defendant's dismissal of counterclaims without prejudice.¹⁷ Because the litigation left counterclaims unresolved, an appealable judgment may never result, leaving the party losing on the merits no right ever to appeal.¹⁸

Despite its severity, the finality rule has logical support. The tactic of dismissing pending claims in the trial court, only to reassert them after winning an appeal of other claims previously lost, circumvents the Rule 54(b) requirement that, absent trial court certification, appeal only follows final resolution of all claims of all parties. Parties should not be able to manufacture appellate jurisdiction over interlocutory orders not otherwise appealable simply by dismissing temporarily from the trial court remaining claims that foreclose appeal. The Eighth Circuit terms such dismissals "tongue-in-cheek" and finds them insufficient to create appellate jurisdiction.¹⁹

A contrary rule effectively enables parties to certify their own claims for interlocutory appeal, outside of Rule 54(b) or 28 U.S.C. § 1292(b), and "provide[s] a means to avoid the finality rule embodied in 28 U.S.C. § 1291."²⁰ Such would severely weaken "the policy against piecemeal litigation,"²¹ and subject appeals to considerable manipulation.²² Such a policy would enable a plaintiff "conceivably [to] appeal as many times as he has claims if he is willing to stipulate to the dismissal. . . ."²³ The policy would violate the admonition that courts must "approach . . . [28 U.S.C. § 1291] somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders."²⁴

Early in the 20th century, Congress created Rule 54(b) as a mechanism to establish finality as to parts of a case so that parties could take final judgment appeals while unresolved claims remained. Congress amended that rule in 1961 further to permit such appeals where a court has resolved fully all claims of one party. But Rule 54(b) is not without limits; parameters that Congress has defined for the rule foreclose appeal in certain circumstances. Voluntary dismissal to create finality for appeals without trial court certification under Rule 54(b), or where Rule 54(b) cannot authorize appeal, circumvents these limitations. Unless an order disposing of a claim can be certified under Rule 54(b) — and not all orders disposing of claims and parties can be so certified — then parties ought not be able, through private machinations, to avoid the Congressionally-prescribed limitations on appeal. And where a court could, but declines to, certify an order as appealable under that rule, the parties ought not be able to certify their own appeals through manipulation.

The harsh result of the rule for parties stumbling on finality has, however, challenged the courts of appeals. Several circuits — the Eighth Circuit perhaps more than any other — have struggled to improvise exceptions even while fearful of the result. Not surprisingly, the struggle produces tension and inconsistencies within judicial rulings. The Eighth Circuit has endorsed the finality rule in three decisions,²⁵ rejected it in two others,²⁶ and permitted one appeal, not available under traditional finality principles, while silent about the rule.²⁷ Nor does the sequence of these cases shed any light. After enforcing the rule in two cases,²⁸ the court then declared that it did not follow the rule²⁹ while ignoring its decisions that had, only to enforce the rule again in a later case.³⁰

This struggle within the Eighth Circuit is not lost on other courts. The Second Circuit and Ninth Circuit have cited the Eighth Circuit's split from the majority,³¹ as has Moore's treatise on federal practice,³² with both authorities noting the Eighth Circuit's internal inconsistency. In 1999, the Eighth Circuit attempted to formulate a clear finality rule, only to qualify the iteration months later.³³ The combination of these two decisions unsurprisingly produced the latest troubling link in this twisted chain: the circuit recently permitted an appeal — a final judgment appeal — from the denial of a summary judgment motion on two counts that produced no judgment at all.³⁴ The court so ruled because the order effectively foreclosed one party's view of the law necessary to its case, thus in effect terminating its case pre-judgment, even though the order remained interlocutory under Rule 54(b). A rule less clear is hard to imagine.

This new century thus begins with a disputed finality issue that renders the right to appeal unclear and non-uniform across the nation. Eight federal circuits impose the harsh rule of finality, although the Eleventh Circuit bends the rule for dismissals that preceded the order appealed. The Sixth Circuit and Eighth Circuit fashion their own unique rules.³⁵

This subjectivity and lack of clarity in appellate jurisdiction create an appellate minefield. The determination of when a party may appeal an order as final, after all, equally determines when that party must appeal, lest the party forever lose the right after 30 days.³⁶ Just as the confusion over finality a century ago led to protective appeals by parties unsure of whether they may, and thus must, appeal, so too will the new finality rules compel the same. This is especially so in the Eighth Circuit, where dismissals without prejudice under Rule 41(a)(2), Fed. R. Civ. P., may produce appealable judgments, depending upon trial court intent. The uncertainties in Eighth Circuit law, and the differences across the circuits, warrant resolution.

I. The Final Judgment Rule And Rule 54 Certification Of Finality On Fewer Than All Claims Of All Parties

A. The Final Judgment Rule

Section 1291³⁷ creates appellate jurisdiction only over "final decisions," which require entry of a final judgment.³⁸ This "final judgment rule" creates appellate jurisdiction only over a decision that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."³⁹

Interlocutory review of orders disposing of parts of one claim violate the rule against "piecemeal disposition on appeal of . . . a single controversy."⁴⁰ "To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause."⁴¹ Citing pretrial appeals as a source of "disruption, delay and expense for the litigant," the Supreme Court has supported the finality rule as protecting "a variety of interests that contribute to the efficiency of the legal system."⁴²

The Supreme Court thus requires that a party raise "all claims of error in a single appeal."⁴³ The rule avoids trial court delays occasioned by repeated trips to the appellate court and reduces the number of appeals altogether: "[M]any mistakes, apparently important at the time, will be seen to be trivial from the perspective of a final disposition of the case, and . . . disputes will therefore be more expeditiously settled."⁴⁴ Pretrial appeals "burden appellate courts by requiring immediate consideration of issues that may become moot or irrelevant."⁴⁵

Implementing the final judgment rule early in the federal judiciary's history, however, proved difficult. Final judgments on claims were appealable for 30 days. With no statutory or regulatory definition of what constituted such a claim, parties were left unsure what piece of a case, when resolved by the trial court, was an appealable final judgment on that claim. Courts generally then ruled that orders disposing of claims sufficiently separate from the remaining litigation were final judgments and thus appealable.⁴⁶ Trial court leeway in determining finality, however, while blessing some parties with a right to early appeal, cursed others who learned too late that finality had attached to an earlier ruling that required the party then to appeal or forever lose the right.

In the late 1930s, this situation propelled adoption and later amendment of Rule 54(b) of the then-new Federal Rules of Civil Procedure. That rule originally provided that "when more than one claim for relief [was] presented in an action," no appeal would lie unless the trial court entered a separate judgment "upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which [was] the subject matter of the claim."⁴⁷ Absent such a determination, any order disposing of fewer than all claims was not appealable. Rule 54(b) limited district court certification to orders disposing of a complete "claim"; that is, all causes of action, including counterclaims, arising from the same "occurrence." The rule was later amended in 1946, effective in 1948, to cure the further problem of determining when an order on a claim was final and thus appealable. Although the rule still did not define the "claims" that could be certified for appeal, the rule did remove doubt as to when appeal was timely: only upon certification of the claim finally resolved.

B. Rule 54(b) Permits Entry of Final Judgments in Limited Circumstances When Other Claims Remain

In its original iteration, Rule 54(b) thus provided that a district court could certify a claim as final, and thereby enter final judgment, "[w]hen more than one claim for relief is presented in an action" on an order disposing of "one or more but fewer than all of the claims." In 1961, Congress amended Rule 54(b) to permit final judgments "as to one or more but fewer than all of the . . . parties." "[T]he Rule was amended to insure that orders finally disposing of some but not all of the parties could be appealed."⁴⁸ The amendment "require[d] a final adjudication of all of the rights and liabilities of at least one party before judgment may be directed as to that party . . . ."⁴⁹ "If claims by or against that party remain pending in the district court, the Rule 54(b) judgment would generally be improper."⁵⁰ As a threshold, Rule 54(b) thus now permits entry of final judgment only: (1) where judgment issues on one separate claim, in its entirety, in a multiple-claim action; or (2) where judgment issues on all claims raised by and against at least one separate party in a multiple-party action.⁵¹

Even when these circumstances exist, other judicial interests may weigh against certification for appeal. When a claim "requires familiarity with the same nucleus of facts and involves analysis of similar legal issues," the "interest of appellate efficiency" requires that a single appeal resolve them.⁵² Given that "[t]he policy of all courts is to avoid piecemeal and interlocutory appeals," Rule 54(b) judgments "should not be entered routinely"; certification is proper only in special circumstances where immediate appeal alleviates imminent hardship.⁵³

C. Rule 54(b) Certification of Separate "Claims"

The greatest constraint on Rule 54(b) certification thus turns on the same inquiry extant a century ago: defining the scope of the claim that, when resolved, either could be appealed immediately as a final judgment before Rule 54 was enacted, or today would be eligible for appeal upon certification under the rule. Rule 54(b) "did not, however, purport to amend or dilute the fundamental rule against splitting a cause of action and deciding appellate cases piecemeal."⁵⁴ Just as rulings on less than a claim a century ago were not appealable, courts today cannot certify a final judgment under Rule 54(b) "on one segment of a single claim."⁵⁵ Nothing in Rule 54(b) eased the limitation that trial courts can certify a ruling as a final judgment only when disposing of a complete claim.⁵⁶ "Dividing one claim into two parts does not create the 'multiple claim' scenario anticipated by Rule 54(b)."⁵⁷

As the Fifth Circuit has noted, courts of appeals apply three tests to determine the scope of a certifiable claim.⁵⁸ For some, a separate claim exists if separate recoveries are possible; "if the causes of action or factual allegations asserted permit only one recovery, only one claim for relief is presented."⁵⁹ Other courts examine whether the facts underlying the claims are different; still others look to whether the claims, if filed separately, would violate the res judicata rule against "splitting claims."⁶⁰

In the Eighth Circuit, multiple counts are multiple claims under Rule 54(b) if plaintiffs may recover separate, cumulative judgments. "It is clear that a claimant who presents a number of alternative legal theories, but whose recovery is limited to only one of them, has only a single claim for relief for purposes of Rule 54(b)."⁶¹ The Eleventh Circuit follows the same rule. "[T]here is only a single inseparable claim for relief" under Rule 54(b) "if the [purportedly separate] claims for relief would not permit more than one possible recovery."⁶²

The Eighth Circuit also has defined this rule under res judicata and claim-splitting principles, a potentially broader definition of "claim."⁶³ In Page,⁶⁴ the circuit rejected a Rule 54(b) certification because claims remaining in the trial court dealt with the "same transaction or occurrence as those appealed." The entire complaint thus "asserted only a single claim."

The same general analysis can apply in deciding whether a trial court may certify a final judgment upon dismissing all claims involving a particular party. "Where the complaint is dismissed as to one defendant but not others, the court should not, as a general matter, direct the entry of a final judgment . . . if the same or closely related issues remain to be litigated against the undismissed defendants."⁶⁵ Other circuits have similarly found abuses of discretion in these circumstances.⁶⁶

District courts have an obvious interest in testing significant orders on an interlocutory appeal before taking the case to a trial that appellate review of the earlier ruling might obviate. This rationale does not, however, satisfy Rule 54(b). When courts dispose of some claims pre-trial, a post-trial appellate reversal of that order always vitiates the trial already undertaken. Nevertheless, the Second Circuit rejects Rule 54(b) review of an order certified on this basis, finding it an abuse of trial court discretion as a matter of law.⁶⁷ That rule also obtains in the Eighth Circuit.⁶⁸

Issues of the finality trap thus arise where, without certification under Rule 54(b) or 28 U.S.C. § 1292(b), parties create appellate jurisdiction through dismissals without prejudice under Fed. R. Civ. P. 41(a). The finality rule forbids the practice.

II. The Majority Rule: Dismissals Without Prejudice Undermine Finality And Thus Destroy Appellate Jurisdiction

As the Eleventh Circuit recognized in Grayson v. K Mart Corp.,⁶⁹ the rationale for the finality trap follows from Jung v. K & D Mining Co.,⁷⁰ where the Supreme Court rejected finality of dispositions following dismissals without prejudice. In Jung, a plaintiff appealed from a trial court order that dismissed a complaint while granting leave to refile. The Court held that orders dismissing claims without prejudice are not final under 28 U.S.C. § 1291, even where they reject an entire complaint. Appellate jurisdiction does not lie from an order that permits the plaintiff to re-file and further litigate its claims in trial court; jurisdiction lies only over orders that dispose of all claims with prejudice.⁷¹ The holdings in Jung, like that of the Eighth Circuit in Tietz, apply this general rule. Orders permitting reassertion of claims do not end litigation, much less do they do so on the merits.

Jung applies equally to voluntary dismissals without prejudice. Jung forecloses use of such dismissals to create finality for concededly interlocutory orders. Indeed, Rule 12 orders, like that in Jung, bear greater indicia of finality than Rule 41(a) dismissals. Voluntary dismissals without prejudice leave open indefinitely when plaintiffs can reassert the unresolved claims, limited only by the relevant statute of limitations. Rule 12 dismissals, in contrast, typically specify a date by which a party must refile. If the Rule 12 order is not final, then voluntary dismissals without prejudice under Rule 41(a) a fortiori are not final.

A. The Lineup of the Eight Majority Circuits

The Eleventh Circuit decision in Grayson⁷² reflects the majority rule of eight federal circuits that regularly apply Jung to Rule 41(a) dismissals. The Grayson court rejected appellate jurisdiction over a partial summary judgment where the plaintiff dismissed without prejudice, under that rule, the surviving claims that otherwise barred appeal.⁷³ The courts of appeals for the Second, Third, Fourth, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits all "refuse to exercise jurisdiction over nonfinal orders after dismissal without prejudice of unresolved claims."⁷⁴ As the Tenth Circuit holds in Cook:⁷⁵

[W]hen a plaintiff voluntarily requests dismissal of her remaining claims without prejudice in order to appeal from an order that dismisses another claim with prejudice . . . the order is not "final" for purposes of § 1291.

The Fifth Circuit decision in Ryan⁷⁶ illustrates the contrast between this majority rule and the dissenting position of the Eighth Circuit, which, in Great Rivers,⁷⁷ addressed procedural manipulations parallel to those of Ryan. The Ryan district court dismissed one part of the plaintiffs' case and certified the order for immediate appeal under Rule 54(b). Before the Fifth Circuit could dismiss that appeal as improperly certified, the Ryan trial court withdrew the certification. The Ryan plaintiffs then dismissed their remaining claims without prejudice to obtain a "final judgment" for appeal while retaining the right to reassert the voluntarily-dismissed claims on remand. The court dismissed the appeal for lack of jurisdiction because finality did not attach to the judgment so created. The Eighth Circuit ruled exactly to the contrary on the same facts in Great Rivers — first rejecting, as improperly certified, plaintiffs' appeals under Rule 54(b) and 28 U.S.C. § 1292(b) from adverse summary judgments, but then accepting the plaintiffs' final judgment appeal after plaintiffs dismissed their remaining claims. As in Ryan, the plaintiffs in Great Rivers explicitly declared their intent to re-file those claims after any remand on appeal.⁷⁸

Eight separate circuits consistently enforce the rule that dismissals without prejudice destroy appellate jurisdiction. If courts cannot certify partial summary judgments on some claims for separate appeal under Rule 54(b), then temporary dismissal of the same remaining claims is "a clear, and impermissible, attempt to circumvent Rule 54(b)."⁷⁹ The list of decisions and courts, appearing in footnote five, date back a quarter century. These decisions establish the position of the large majority of the federal courts that deny finality where parties have dismissed claims, or even counterclaims,⁸⁰ during litigation. Concluding an action in the trial court without final disposition of voluntarily-dismissed claims creates the prospect of banishment from the appellate court, without any action left pending in the trial court to which to return to correct the matter. The error by counsel forecloses both any appeal from decisions during the litigation and also any further litigation in the trial court.⁸¹

B. Judicially Crafted Limitations and Exceptions

This discussion has addressed the majority position reflected across the country. Discomfort at the undeniable harshness of the finality trap on unsuspecting litigants, however, has caused courts of appeals applying the rule to carve unpredictable exceptions into it. The second installment of this article will address exceptions within the majority position, as well as the primary minority positions, which mollify these harsh results. Courts following the majority rule occasionally make exemptions by imparting finality to, and thus permitting appeals from, case dispositions containing non-final dismissals of claims that, in fact or law, the party cannot re-file in any event. These courts also will, on unpredictable occasions, permit appeals where a party invokes the dismissal without intent or need to manufacture appellate jurisdiction over an otherwise interlocutory order — a "clean hands" exception. Many of these exceptions address involuntary dismissals, not the Rule 41(a) voluntary dismissals subject to the finality trap rationale, and they are thus less germane to the discussion here. They deserve mention only because the Sixth Circuit and Eighth Circuit occasionally cite such dismissals in rejecting the majority rule. The second article also discusses the perambulations of the dissenting circuits, the Sixth Circuit and Eighth Circuit, and the confusion they create.

A caution is, however, due. These exceptions, and much of the dissenting circuit opinions, often represent random judicial acts to save a party's right to appeal; they are not necessarily principled decisions assured of adherence in the future, but rather reactions to instincts of fairness despite violations of the finality rule. As such, some of these exceptions likely are isolated stopgaps that courts thereafter may ignore, and upon which appellate practitioners cannot rely in planning. The appellate litigant should be forewarned. Freedom from the anxiety of the potential malpractice claims looming over the finality trap only will come when Congress or the judicial conference opts to resolve this issue by statute or rule, as the second part of this article will propose.

Endnotes

¹ Mr. Schackmann is a partner in the Kansas City office of Spencer Fane Britt & Browne LLP. He heads the firm's appellate litigation group. He served as counsel in Great Rivers Coop. v. Farmland Indus., Inc., 198 F.3d 685 (8th Cir. 1999), and Interstate Power Co. v. Kansas City Power & Light Co., 992 F.2d 804, 806-08 (8th Cir. 1993), among other appeals addressing the issues discussed herein.

² Mr. Pickens is a partner in the Kansas City office of Spencer Fane Britt & Browne LLP. He practices in the firm's appellate litigation group in conjunction with his commercial litigation practice. He served as counsel in Great Rivers Coop. v. Farmland Indus., Inc., 198 F.3d 685 (8th Cir. 1999), and Interstate Power Co. v. Kansas City Power & Light Co., 992 F.2d 804, 806-08 (8th Cir. 1993), among other appeals addressing the issues discussed herein. The authors wish to thank Ms. Katherine Miller, an associate with the firm, and Mr. Lawrence Jenab, a law student at the University of Kansas School of Law, for their assistance in case research and their valuable comments in producing these two articles.

³ See 28 U.S.C. §1291; Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978). Rule 54(a), Fed. R. Civ. P., describes as a judgment "a decree and any order from which an appeal lies." Rule 54(b) then provides that "[w]hen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon express direction for the entry of judgment." Under Rule 54(b), trial courts may certify for appeal only orders that are final resolutions of a claim, otherwise appealable but for the presence of additional claims and parties. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 (1956).

⁴ Interlocutory appeals under 28 U.S.C. § 1292(e), and appeals from judgments certified final under Rule 54(b), Fed. R. Civ. P., are not widely available. Section 1292(b) requires trial court approval and appellate court consent before the appeal lies, except from class certification orders that need no trial court action. 28 U.S.C. § 1292(f); Fed. R. Civ. P. 23(f). Section 1292(b) only authorizes appeals of controlling questions necessary to advance the action below. Orders disposing of entire claims where nothing remains to litigate fall under Rule 54(b), which permits trial courts to certify certain orders as final for appeal. See Interstate Power Co. v. Kansas City Power & Light Co., 992 F.2d 804, 807 (8th Cir. 1993); Hayden v. McDonald, 719 F.2d 266, 270 (8th Cir. 1983). Appeals from Rule 54(b) judgments thus are available only with trial court consent.

⁵ Chappelle v. Beacon Comm. Corp., 84 F.3d 652, 654 (2d Cir. 1996); Palmieri v. Defaria, 88 F.3d 136, 139-40 (2nd Cir. 1996); Sadowski v. Technical Career Institutes, Inc., 107 F.3d 4 (2nd Cir. 1997); Fowlkes v. Soc. Sec. Admin., 1997 WL 752547 (2nd Cir. 1997); Sullivan v. Pacific Indemnity Co., 566 F.2d 444-446 (3rd Cir. 1977); In re Dunes Hotel Assocs. v. S.C. Hyatt Corp., 153 F.3d 719 (4th Cir. 1998); Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 301-303 (5th Cir. 1978); Florida State Bd. of Admin. v. Brick, 210 F.3d 371 (6th Cir. 2000); Horwitz v. Alloy Automotive Co., 957 F.2d 1431, 1436 (7th Cir. 1992); JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 776 (7th Cir. 1999); Sunny Indus., Inc. v. Rockwell Int'l Corp., 248 F.3d 1160 (7th Cir. 2001); ITOFCA v. MegaTrans Logistics, Inc., 235 F.3d 360 (7th Cir. 2000); Central States, Southeast and Southwest Areas Pension Fund v. Quickie Transp. Co., 248 F.3d 1157 (7th Cir. 2000); Minnesota Pet Breeders v. Schell & Kampeter, Inc., 41 F.3d 1242 (8th Cir. 1994); DuBose v. State of Minnesota, 893 F.2d 169, 171 (8th Cir. 1990); Tan v. Kaiser Harbor City Medical Ctr., 2000 WL 278119 (9th Cir. 2000); Austin Diversified Prods., Inc. v. County of Santa Barbara, 178 F.3d 1299 (9th Cir. 1999); Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1075-76 (9th Cir. 1994); Cheng v. Commissioner, I.R.S., 878 F.2d 306, 309-310 (9th Cir. 1989); Wine Market Int'l, Inc. v. Bass, 248 F.3d 1175 (9th Cir. 2000); Heimann v. Snead, 133 F.3d 767, 769 (10th Cir. 1998); Cook v. Rocky Mountain Bank Note Co., 974 F.2d 147, 148 (10th Cir. 1992); In re Grandote Country Club, Co., 252 F.3d 1146 (10th Cir. 2001); State Treasurer of the State of Mi. v. Barry, 168 F.3d 8, 11-13 (11th Cir. 1999); Construction Aggregates, Ltd. v. Forest Commodities Corp., 147 F.3d 1334, 36-37 (11th Cir. 1998); Grayson v. K Mart Corp., 79 F.3d 1086, 1094 & n.7 (11th Cir. 1996); Mesa v. United States, 61 F.3d 20, 21-22 (11th Cir. 1995); Hood v. Plantation Gen. Medical Cent., 251 F.3d 932 (11th Cir. 2001). See also 10 James Wm. Moore et al., Moore's Federal Practice, 54.25 (2nd ed. 1985).

⁶ After a voluntary dismissal, the district court "no longer has jurisdiction over any part of [the] action." Cook v. Rocky Mountain Bank Note Co., 974 F.2d 147, 148 (10th Cir. 1992). Accord, Commercial Space Management Co. v. Boeing Co., 193 F.3d 1074 (9th Cir. 1999); Safeguard Bus. Sys. Inc. v. Hoeffel, 907 F.2d 861, 864 (8th Cir. 1990) (order following dismissal without prejudice is "void for want of jurisdiction"). One writer echoed the Tenth Circuit warning: "Those toying with the idea of employing a similar tactic should consider whether plaintiff might not have foreclosed her opportunity of ever appealing the dismissal of the earlier-dismissed claims." 8 Fed. Litigator 86 (1993) ("There is Only One Way to Skin a 54(b) Cat").

⁷ Dicken v. Ashcroft, 972 F.2d 231, 233 n.5 (8th Cir. 1992); Ruple v. City of Vermillion, S.D., 714 F.2d 860, 862 (8th Cir. 1983); 18 Charles Allen Wright, Arthur R. Miller and Mary Kay Cooper, Federal Practice & Procedure, §4444 (Supp. 2001); Restatement (Second) of Judgments, §19 and comment g (1982).

⁸ State of Mo. v. Coeur D'Alene Tribe, 164 F.3d 1102, 1106 (8th Cir. 1999).

⁹ The Federal Judiciary Act of 1789, 1 Stat. 73 (appeal lies from "final judgments and decrees").

¹⁰ Carleton M. Crick, The Final Judgment As A Basis of Appeal, 41 Yale L.J. 539, 558 (1932).

¹¹ Separate statutory provisions grant appellate jurisdiction over otherwise interlocutory rulings that have special importance or may effectively be moot when litigation concludes. See, e.g., 28 U.S.C. §1292(a) (orders granting or denying injunctive relief). Judicial exceptions to the finality rule include appeals from orders regarding collateral matters. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Courts have crafted other exceptions to allow appeal from orders "that determin[e] substantial rights of the parties which will be irreparably lost if review is delayed until final judgment." Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 301 (5th Cir. 1978). Rule 54(b), Fed. R. Civ. P., does not provide interlocutory appeals, but appeals under 28 U.S.C. §1291 from final judgments certified by the trial court. That rule defines circumstances in which a trial court may designate rulings disposing of certain claims or parties as final.

¹² Coopers & Lybrand, 437 U.S. at 467 (citing Catlin v. United States, 324 U.S. 229, 233 (1945)). The Eighth Circuit similarly rules. See e.g., Towers Hotel Corp. v. Rimmel, 871 F.2d 766, 769 (8th Cir. 1989) (citing Catlin); Thomas v. Basham, 931 F.2d 521, 523 (8th Cir. 1991).

¹³ Jung v. K & D Mining Co., 356 U.S. 335 (1958); Tietz v. Local 10 of Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers, 525 F.2d 688, 689 (8th Cir. 1975). But see Great Rivers Cooperative v. Farmland Indus., Inc., 198 F.3d 685 (8th Cir. 1999) (some dismissals without prejudice, where trial court intends to end involvement in case, can create final judgment).

¹⁴ Jung v. K & D Mining Co., 356 U.S. 335 (1958); Tietz v. Local 10 of Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers, 525 F.2d 688, 689 (8th Cir. 1975).

¹⁵ Chappelle, 84 F.3d 652 (court dismisses claims under Rule 12(b)(6); plaintiff thereafter dismisses remaining claims without prejudice; held, no appellate jurisdiction); Ryan, 577 F.2d 298 (same); Mesa v. United States, 61 F.3d 20 (11th Cir. 1995) (same).

¹⁶ Interstate Power Co. v. Kansas City Power & Light Co., 992 F.2d 804, 806-08 (8th Cir. 1993).

¹⁷ Heimann v. Snead, 133 F.3d 767 (10th Cir. 1998); Construction Aggregates, Ltd. v. Forest Commodities Corp., 147 F.3d 1334 (11th Cir. 1998); In re Dunes Hotel Assocs. v. S. C. Hyatt Corp., 153 F.3d 719 (4th Cir. 1998).

¹⁸ Heimann, 133 F.3d 767; Construction Aggregates, 147 F.3d 1334. The prospect of such a circumstance raises an untested application of the finality trap: whether a trial court judgment that is not final and appealable is worth anything to the winner. Prevailing parties cannot enforce judgments by writ of execution except upon entry of a final judgment. Fed. R. Civ. P. 69(a); see also 13 Moore's Federal Practice, & 69.02 (Matthew Bender 3d ed.). If a defendant cannot appeal a judgment because of a lack of finality, can a plaintiff ever enforce its judgment? Parties face the improbable circumstance that a plaintiff could have a judgment that the defendant could never appeal but which the plaintiff could never enforce. Few circumstances could better illustrate the difficulty faced by courts in following the finality trap doctrine.

¹⁹ Minnesota Pet Breeders, 41 F.3d at 1245.

²⁰ Palmieri, 88 F.3d 136, 139 (2nd Cir. 1996).

²¹ Id.

²² Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1076 (9th Cir. 1994).

²³ Id.

²⁴ Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 482 (1978).

²⁵ Minnesota Pet Breeders, 41 F.3d at 1245 (acknowledging rule, but converting on appeal a dismissal by trial court, without prejudice, into one with prejudice to create appellate jurisdiction to affirm judgment); Orion Fin. Corp. v. Am. Foods Group, 201 F.3d 1047, 1048-49 (8th Cir. 2000). See also Merchants & Planters Bank of Newport v. Smith, 516 F.2d 355, 356 n.3 (8th Cir. 1975) (finding that trial court effectively certified judgment as final under Rule 54(b), though without explicit certification required by rule, when court bifurcated case).

²⁶ Great Rivers, 198 F.3d at 687-690; Cour D' Alene Tribe, 164 F.3d at 1105-06.

²⁷ Chrysler Motors Corp. v. Thomas Auto Co., 939 F.2d 538, 540 (8th Cir. 1991).

²⁸ Minnesota Pet Breeders, 41 F.3d at 1245; DuBose, 893 F.2d at 171.

²⁹ Coeur D'Alene Tribe, 164 F.3d at 1105-06.

³⁰ Orion, 201 F.3d at 1048-49.

³¹ Chappelle, 84 F.3d at 654; Dannenberg, 16 F.3d at 1077 n.4.

³² 10 James Wm. Moore et al., Moore's Federal Practice, 54.25[3] & n.7 (Matthew Bender 3d ed.).

³³ Compare Great Rivers, 198 F.3d at 689-90, with Orion, 201 F.3d at 1048-49.

³⁴ Helm Financial Corp. v. MNVA R.R., Inc., 212 F.3d 1076, 1080 (8th Cir. 2000).

³⁵ The Sixth Circuit, though enforcing the rule occasionally, Florida State Bd. of Admin. v. Brick, 210 F.3d 371 (6th Cir. 2000) (citing Grayson, 79 F.3d 1086 (11th Cir. 1996)), permits appeals from interlocutory orders when the parties dismiss remaining claims without prejudice under Rule 41(a)(1), provided that the trial court approves the dismissal — an extemporized procedure authorizing interlocutory appeals upon dual satisfaction of Rules 41(a)(1) and (2), Fed. R. Civ. P., without the certification required under Rule 54(b) or 28 U.S.C. § 1292(b). The Eighth Circuit allows appeals from court-ordered dismissals under Fed. R. Civ. P. 41(a)(2), subject to appellate review for abuse of discretion in ordering the dismissal, thus predicating appellate jurisdiction on trial court discretion. See Great Rivers Coop. v. Farmland Indus., Inc., 198 F.3d 685, 688 (8th Cir. 1999); Orion Fin. Corp. v. American Foods Group, Inc., 201 F.3d 1047, 1048-49 (8th Cir. 2000). The Eighth rejects appellate jurisdiction over agreed-to dismissals under Rule 41(a)(1), Great Rivers, where parties could be manufacturing jurisdiction.

³⁶ See Rule 4, Fed. R. App. P.

³⁷ 28 U.S.C. §1291.

³⁸ Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978).

³⁹ Id.

⁴⁰ Cobbledick v. United States, 309 U.S. 323, 325 (1940).

⁴¹ Id.

⁴² Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 380 (1987).

⁴³ Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981).

⁴⁴ Perkins v. Endicott Johnson Corp., 128 F.2d 208, 212 (2nd Cir. 1942) (Frank, J.), aff'd, 317 U.S. 501 (1943).

⁴⁵ Stringfellow, 480 U.S. at 380.

⁴⁶ See Note, Separate Review of Claims in Multiple Claims Suits: Appellate Jurisdiction Under Amended Federal Rule 54(b), 62 Yale L.J. 263, 264 (1953).

⁴⁷ Fed. R. Civ. P. 54(b) (1937).

⁴⁸ Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 743 n.3 (1976).

⁴⁹ 10 James Wm. Moore et al., Moore on Federal Procedure 54.22[2][c] at 54-59.

⁵⁰ Id. at 54-60. See Soliday v. Miami County, Ohio, 55 F.3d 1158, 1163 (6th Cir. 1995) (final judgments proper for two of eight defendants "not involved in any remaining claim").

⁵¹ 10 James Wm. Moore et al., Moore on Federal Procedure 54.22[2] at 42.

⁵² Interstate Power, 992 F.2d at 807; Hayden v. McDonald, 719 F.2d 266, 270 (8th Cir. 1983); Hogan v. Consolidated Rail Corp., 961 F.2d 1021, 1025 (2nd Cir. 1992).

⁵³ Burlington Northern R.R. v. Bair, 754 F.2d 799, 800 (8th Cir. 1985); Bullock v. Baptist Mem'l Hosp., 817 F.2d 58, 59 n.2 (8th Cir. 1987). See Hayden, 719 F.2d at 270.

⁵⁴ Page v. Preisser, 585 F.2d 336, 339 (8th Cir. 1978). See Interstate Power Co. v. Kansas City Power & Light Co., 992 F.2d 804, 807 (8th Cir. 1993); Hardie v. Cotter & Co., 819 F.2d 181, 182 (8th Cir. 1987); Bullock v. Baptist Mem'l Hosp., 817 F.2d 58, 59 n.2 (8th Cir. 1987); Burlington Northern R.R. v. Bair, 754 F.2d 799, 800 (8th Cir. 1985). The same court similarly confines interlocutory review under §1292(b). White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994).

⁵⁵ Soliday, 55 F.3d at 1163.

⁵⁶ Sears, 351 U.S. at 427.

⁵⁷ Soliday, 55 F.3d at 1163. See Tolson v. United States, 732 F.2d 998, 1001 (D.C. Cir. 1984).

⁵⁸ Eldredge v. Martin Marietta Corp., 207 F.3d 737 (5th Cir. 2000).

⁵⁹ 10 James Wm. Moore et al., Moore on Federal Procedure 54.22[2][b] at 54-55 (citing cases).

⁶⁰ Eldredge, 207 F.3d at 741.

⁶¹ Page, 585 F.2d at 339.

⁶² In re Southeast Banking Corp., 69 F.3d 1539, 1547 (11th Cir. 1995) (citing 10 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2657 at 67 (2nd ed. 1983)).

⁶³ Reyher v. Champion Int'l Corp., 975 F.2d 483, 487 (8th Cir. 1992) ("the 'same nucleus of operative fact' [test] that defines the single claim" of Rule 54(b)).

⁶⁴ 585 F.2d at 339.

⁶⁵ Hogan, 961 F.2d at 1025.

⁶⁶ See, e.g., Hayden, 719 F.2d at 270 (fact that "case deals essentially [with] one set of facts" is a factor that "will weigh heavily against entry of judgment").

⁶⁷ Hogan, 961 F.2d at 1025-26.

⁶⁸ Interstate Power, 992 F.2d at 807.

⁶⁹ 79 F.3d at 1094 & n.7.

⁷⁰ 356 U.S. 335 (1958).

⁷¹ Id. The Eighth Circuit refused to hear an appeal from an order dismissing a complaint "without prejudice to plaintiff's right . . . to file an amended complaint." Tietz v. Local 10 of Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers, 525 F.2d 688, 689 (8th Cir. 1975).

⁷² 79 F.3d 1086.

⁷³ Grayson, 79 F.3d at 1094 & n.7.

⁷⁴ Dannenberg, 16 F.3d at 1077.

⁷⁵ 974 F.2d at 148.

⁷⁶ 577 F.2d at 301-03.

⁷⁷ 198 F.3d at 687-90.

⁷⁸ Id.

⁷⁹ Dannenberg, 16 F.3d at 1077.

⁸⁰ See Heimann v. Snead, 133 F.3d 767 (10th Cir. 1998); Construction Aggregates, 147 F.3d 1334 (11th Cir. 1998).

⁸¹ Commercial Space Management Co. v. Boeing Co., 193 F.3d 1074 (9th Cir. 1999); Safeguard Bus. Sys., Inc. v. Hoeffel, 907 F.2d 861, 864 (8th Cir. 1990) (order entered after dismissal without prejudice is "void for want of jurisdiction").