Fed. R. Civ. P. 41(a)(2) Cannot Be Used to Dismiss Individual Claims, Holds Eleventh Circuit

In Rosell v. VMSB, LLC, No. 22-11325 (11th Cir. May 12, 2023), The Eleventh Circuit “make[s] explicit what our precedent has implied for almost two decades: Federal Rule of Civil Procedure 41(a)(2) provides only for the dismissal of an entire action. Any attempt to use this rule to dismiss a single claim, or anything less than the entire action, will be invalid—just like it would be under Rule 41(a)(1).”

Plaintiffs, who are restaurant employees, filed a three-count complaint under the Fair Labor Standards Act and parallel Florida state wage-and-hour laws alleging “that a ‘service charge’ collected from customers and divided among staff was in fact a tip that should not have counted as part of their regular rate of pay.” The magistrate judge issued a report and recommended granting partial summary judgment for defendant “VMSB on Counts I and II (the federal and state minimum wage claims) and denying summary judgment to both sides on Count III (the federal overtime claim).” The parties then settled Count III. Plaintiffs moved the district court to approve the settlement and to “direct the clerk to dismiss Count III” with prejudice.

The district court adopted the report and recommendation and approved the settlement. But instead of the court entering a final judgment on the entire matter, the parties filed a stipulated Rule 41(a)(2) dismissal of only Count III, and the plaintiffs filed a notice of appeal of the summary judgment as to Counts I and II.

The Eleventh Circuit holds that it lacks jurisdiction over the appeal, because the attempted stipulation of dismissal of just one count of the complaint was invalid. “Rule 41(a)(1) explains how a plaintiff can dismiss an “action” without a court order, and Rule 41(a)(2) specifies when an “action” can be dismissed at plaintiff’s request by court order. Here, neither the court nor any party explained which subsection of Rule 41(a) authorized the dismissal. But we need not decide how to classify it, because the dismissal was procedurally improper either way.”

“Here, because the parties attempted to dismiss one count rather than the entire action, no part of Rule 41(a) authorized the dismissal. And because the dismissal was ineffective, Count III is still pending before the district court. That means we have no final decision to review. See 28 U.S.C. § 1291.” The panel notes that the federal rules do contemplate partial dismissals, but only by seeking court certification of a partial final judgment under Fed. R. Civ. P. 54(b) or else by amending the complaint under Fed. R. Civ. P. 15. Lacking a final decision here, the panel dismissed the appeal.

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