Despite “Predicament” That Plaintiffs May Get No Appeal on the Merits, Eleventh Circuit Holds That There Is No Jurisdiction to Review a Partial Dismissal Where the Rest of the Claims Were Transferred to Another Circuit

In Jenkins v. Prime Ins. Co., No. 21-11104 (11th Cir. May 4, 2022), the Eleventh Circuit holds that where a district court dismisses part of case on the merits and transfers the rest out of circuit under 28 U.S.C. § 1404(a), the partial dismissal is not a final decision subject to appeal under 28 U.S.C. § 1291.

The plaintiffs-appellants sought review of an order of the United States District Court for the Northern District of Georgia dismissing their claims against two of four defendants in this lawsuit. “Pursuant to 28 U.S.C. § 1404(a), the district court transferred the claims against the remaining defendants to the United States District Court for the District of Utah.” The plaintiffs did not attempt to appeal the transfer order, only the dismissal of the two defendants. “The district court issued no final decision within the meaning of [28 U.S.C.] § 1291 because it did not resolve all claims against all parties.”

The Eleventh Circuit dismisses the appeal. The panel cycles through each of the possible bases of appellate jurisdiction over an interlocutory order but finds that none applies: “[The] district court [did not] certify its decision for appeal under § 1292(b) or enter a judgment ‘expressly’ determining that there was ‘no just reason for delay’ under Federal Rule of Civil Procedure 54(b). And the collateral order doctrine does not apply because the district court’s order and judgment determined the merits of the dismissed claims.”

Citing a D.C. Circuit decision, Reuber v. United States, 773 F.2d 1367 (D.C. Cir. 1985), the plaintiffs-appellants argued that the order transferring the claims to another federal district under 28 U.S.C. § 1404(a) combined “with the dismissal of the claims against some defendants” made the order appealable as a final decision “because nothing remains for the transferring [district] court to do.” But the Eleventh Circuit notes that Reuber had been disapproved by the Second and Third Circuits and it finds their reasoning more persuasive. “Without a final judgment, an interlocutory order certified for appeal, a Rule 54(b) order, or any other applicable pathway for review, we are without jurisdiction to consider this appeal and must grant the motion to dismiss it.”

The appellants also noted a quirk of Tenth Circuit law (where the Utah court is located) that might prevent an appeal. “Most circuits have concluded that litigants in the appellants’ position could appeal the relevant interlocutory order to the court of appeals in the circuit with jurisdiction over transferee court once the transferee court issues an appealable order . . . . But, unlike other circuits, ‘the Tenth Circuit has held that it lacks jurisdiction to review interlocutory orders issued by an out-of-circuit district court, even when the appealable decision comes from within its boundaries.’”

The Eleventh Circuit is unmoved by the quandary, though. “The appellants contend that if we dismiss their appeal here, they will lose their chance to appeal the dismissal of the claims against [the dismissed defendants] because of the Tenth Circuit’s rule. Notwithstanding the appellants’ predicament, we have no authority to create exceptions to the limits of our appellate jurisdiction.”

As an escape hatch, the panel offers one suggestion in a footnote. “At oral argument, the Court explored with both parties whether the appellants could render the dismissal order appealable in the Tenth Circuit by moving in the transferee court for reconsideration or for certification of the order under Rule 54(b). The parties agreed that either of these options would likely result in an appealable order that would allow the Tenth Circuit to review the issues first decided by the district court in Georgia and urged again in the district court in Utah. We express no view on the merits of this approach. We note, however, that the appellees represented they would ‘not present the argument’ that either the district court in Utah or the Tenth Circuit lacked the authority to consider the dismissed claims.”

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