December 18, 2012 Articles

"Manufactured Finality" and the Right to Appeal in Federal Courts

The circuits are split on the test for when appellate jurisdiction can be manufactured.

By Bennett Evan Cooper

Like a river marching inexorably to the sea, much litigation heads toward appeal, flowing over and around any obstacles in its course. Parties faced with an adverse decision on fewer than all of the claims seek ways of obtaining appellate review without either waiting until the end of the case or unnecessarily sacrificing anything of value that remains. When entry of partial final judgment under Federal Rule of Civil Procedure 54(b) is not available or has been denied, and either the district court or the court of appeals is likely to close the gate to an interlocutory appeal under 28 U.S.C. § 1292(b), parties may get creative. One such avenue of inspiration has been “manufactured finality,” which occurs where the trial court dismisses with prejudice fewer than all of the claims and the plaintiff then voluntarily dismisses whatever remains with the goal of obtaining a final judgment that is appealable as of right. Manufactured finality arises in a variety of settings, some more troubling and prone to manipulation than others, and the circuits are split on the test for when appellate jurisdiction can be manufactured. The Federal Advisory Committees on the Appellate Rules and the Civil Rules have been jointly looking at the issue for several years but have not proposed any amendments to the rules.

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