May 10, 2016 Articles

Finality in the Fourth Circuit

Dismissal of a complaint without prejudice for failure to plead sufficient facts is not a final, appealable order.

By Joseph R. Pope

Pretrial orders that dismiss all claims in an action and enter judgment in favor of a defendant are unquestionably final, appealable orders for purposes of 28 U.S.C. § 1291. See, e.g., Mele v. Fed. Reserve Bank of N.Y., 359 F.3d 251, 253 (3d Cir. 2004) (finding order granting motion for judgment on the pleadings is final order). The issue becomes less clear in cases in which a district court dismisses a complaint for failure to state a claim without prejudice. In instances where the dismissal order is based on a plaintiff’s failure to plead sufficient facts and leaves open the possibility of an amended complaint that could rectify that failure, the Fourth Circuit recently clarified that it does not consider these orders final for purposes of appealability.

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