Premature appeals and setting a case for trial.

• Author: Ellrod, Matt
• Position: Letters - Letter to the editor

Thanks to Bretton Albrecht for his excellent article, "Jumping the Gun: Premature Appeals in Civil Cases," (March). At first I thought there were a few typos in the section titled Orders Granting Motions to Dismiss. After rereading it several times, I think he is correct, but his wording can be misread. Once you have passed the threshold issue of whether the order explicitly dismisses something (as opposed to only explicitly "granting" a motion to dismiss, which implies that another order may be coming to accomplish the actual dismissal), the issue is what it is that is being dismissed. At that stage I would put it more simply: If the order dismisses the complaint only and there is permission to amend, it is not appealable. If the order dismisses the complaint without leave to amend, or dismisses the action, it is.

The term "with [or without] prejudice" is an unfortunate shortcut which creates confusion. The question is with or without prejudice to what?

If an action is dismissed with or without prejudice, it visually means "with [or without] prejudice to plaintiff reasserting the same cause of action in another lawsuit." Either one of those dismissals is final, because it ends the judicial labor in the current action. Whether that dismissal is with or without prejudice is significant as to whether the plaintiff may file a new action, but either way, the order is ready to be appealed.

If a complaint is dismissed "without prejudice," that usually means "without prejudice to plaintiff amending in this same action." In that case, the action is not yet over and the order is not appealable. It would be clearer for the court to say, "The complaint is dismissed. Plaintiff may amend within 10 days after the date of this order."

If a complaint is dismissed "with prejudice," that usually means that no amendment is being permitted, and probably dismissal of the action at that point is...