Is It Over Yet? A Primer on Federal and State Appellate Finality Doctrines.

Author:Burns, Thomas A.
 
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During civil litigation, trial lawyers often ask whether a dismissal or summary judgment order is final and appealable. (1) Regrettably, even in these common scenarios, the well-known federal and state finality tests offer inadequate guidance. In theory, the tests sound straightforward and similar. But in practice, they are difficult to apply and lead to divergent results. This article illuminates some differences between the federal and state finality doctrines as applied to dismissal and summary judgment orders and explains how to file federal and state notices of appeal.

Is My Order Final and Appealable?

When considering appellate remedies, a litigator's first and foremost determination is whether a dismissal or summary judgment order is final and appealable. But this is easier said than done. The 11th Circuit has jurisdiction over "appeals from all final decisions of the district courts." (2) A federal order is final and appealable only when it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" (3) Similarly, the Florida district courts of appeal have jurisdiction over "final orders of trial courts, not directly reviewable by the supreme court or a circuit court." (4) A state order is final and appealable only "when it adjudicates the merits of the cause and disposes of the action ... leaving no judicial labor to be done except the execution of the judgment." (5)

To the untrained eye, these federal and state finality doctrines appear identical and simple. In practice, however, these two tests are deceptively alike and nowhere near obvious. Rather, these near-tautological tests operate quite differently and obscure important variations between federal and state appellate practice.

These variations stem from two notable procedural distinctions. First, Federal Rule of Civil Procedure 58 imposes a waivable requirement that, with exceptions not pertinent here, (6) "[e]very judgment and amended judgment must be set out in a separate document." (7) Second, federal law generally prohibits piecemeal appeals of partial judgments granted as to certain claims or parties absent certification per Fed. R. Civ. P. 54(b). (8) In contrast, state judgments need not be set forth on a separate document, (9) and litigants may take piecemeal appeals from final orders limited to certain claims or parties without certification. (10) It is little surprise, then, that these two procedural distinctions give rise to two critical substantive differences between the state and federal finality doctrines.

The first difference is that Florida's lack of a separate-document-judgment rule means state orders are not final unless they "include specific 'language of finality.'" (11) For instance, a state order that uses magic words such as "plaintiff take nothing by this suit [and] go hence without day" is final, because the additional language "lends the necessary unequivocal declaration of finality that will support an appeal." (12) Similarly, a state order that "does not contemplate any further judicial labor with regard to the rights of the parties" by stating "Final Summary Judgment is hereby entered" is sufficiently final for appeal. (13) In contrast, a state order that dismisses a complaint "with prejudice," but does not "actually dismiss the action," is not final for appellate purposes. (14) A state order that merely grants summary judgment without going further and actually entering summary judgment is never final. (15) A "non-final order denying summary judgment is not appealable." (16) Absent judgments on separate documents, only language of finality can clarify whether state orders are final.

The federal separate-document-judgment rule, however, dispenses with the need for magic words of finality. For this reason, federal dismissals can be final whether they are "with or without prejudice." (17) Ordinarily, a federal "dismissal without prejudice, which is not appealable, is distinguished from a dismissal with prejudice, which is appealable." (18) But sometimes a federal "dismissal without prejudice can be appealed," so long as it otherwise is a final order. (19) For instance, a federal dismissal without prejudice can be, nevertheless, final when the district court "f[inds] the defendants immune from all claims" and "close[s] the case without granting the plaintiff permission to amend or refile." (20) It is only federal dismissals without prejudice that also grant leave to amend that are interlocutory and unappealable. Such dismissals "without prejudice to refiling are not 'final' for purposes of appeal," (21) at least until the time period within which to amend has expired, (22) because otherwise a litigant would be free to amend his pleading and continue the litigation. By contrast, dismissals can be labeled without prejudice merely because they do not reach the merits and, thus, lack res judicata effect, yet nevertheless remain final and appealable; such a dismissal without prejudice "refers to the fact that the dismissal is not on the merits, not whether the dismissal is final and appealable." (23) That is because dismissal without prejudice permits a new action, assuming the statute of limitations has not run, without regard to res judicata principles. (24)

Ultimately, whether a judgment is final and appealable in federal court depends exclusively on whether the district court actually entered judgment (or a judgment is deemed by law to have been entered by the passage of time) (25) as to all claims and all parties. (26)

The second difference is that Florida's lack of a no-partial-judgment rule means that, unlike federal orders, state orders can be final and appealable even though they resolve litigation as to only some claims or some parties. (27) That means putative appeals of orders partially granting (not denying) dismissal or summary judgment cannot proceed in federal court absent certification under Rule 54(b) (28) or 28 U.S.C. [section] 1292(b), (29) whereas they can sometimes proceed in state court. (30)

How Is an Order Final and Appealable?

These finality rules are all well and good, but it is still difficult to understand them fully without putting them in context and applying them to some common scenarios.

Suppose Penelope sues Dmitry and Daphne. In count one, Penelope claims defamation. In count two, Penelope claims invasion of privacy. Importantly, counts one and two are based on related facts. In count three, Penelope claims breach of contract. Count three, however, is based on facts unrelated to counts one or two.

Many dismissal or summary judgment orders might be final and appealable depending on who is trying to appeal, which claims were resolved, and whether the case is in state or federal court. Tables 1 through 4 graphically depict some initial guidance regarding the...

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