Rosell v. VMSC, LLC

11th Circuit Court of Appeals

Rosell v. VMSC, LLC
11th Circuit Court of Appeals
5/12/23, Judge Grant

Topics: Motion to Dismiss

This is an important case interpreting Rule 41(a)(2), Fed. R. Civ. P. The Eleventh Circuit held that the rule cannot be used to dismiss a single claim or anything less than all pending claims; it can only be used to dismiss an entire action.

Rule 41 governs dismissal of actions, and Rule 41(a) outlines the procedure for voluntary dismissal. Here, the plaintiff tried to dismiss one claim and then appeal the partial summary judgment on other claims. But only an “action” can be dismissed, so the count was not properly dismissed. Thus, the Court held that the appeal was not an appeal of a final judgment, and it dismissed the appeal for lack of jurisdiction until the claim that the plaintiff tried to dismiss is somehow resolved in the district court. The Court clarified that if a plaintiff wants to drop a claim in federal court, they must seek partial final judgment against themselves under Rule 54(b) or amend the complaint under Rule 15. What a colossal waste of time.

Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC
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