So I’m a big nerd. I like trivia, and I enjoy some of the murkier procedural aspects of appellate litigation–in particular, the outer margins of appellate jurisdiction. As you’ve probably guessed, this makes me very popular at dinner parties.
In December, the Fourth Circuit handed down a nice little opinion on this point (appellate jurisdiction, not my waning status in the Roanoke Social Register). In Goode v. Central Virginia Legal Aide Society, Inc., 807 F.3d 619 (4th Cir. 2015), the court considered whether an order dismissing a case without prejudice was a final, appealable order. Our hero, Freddie Lee Goode, sued CVLAS for age and race discrimination. Applying what could only have been an intentionally absurdist reading of Twiqbal, the district court determined that Goode had failed either (1) to present direct or circumstantial evidence of discrimination, or (2) to make out a prima facie case of discrimination under the McDonnell Douglas framework. It therefore dismissed the case–not the complaint–without prejudice, and said nothing about leave to amend. Goode timely appealed.
The question presented was whether the Fourth Circuit had appellate jurisdiction–that is, whether the dismissal without prejudice was a final, appealable order under 28 U.S.C. 1291. It was not. As the court explained, an order dismissing a complaint without prejudice is not appealable if the plaintiff could have saved his action by amending the complaint. The court will apply this test on a case-by-case basis, but it offered some general guidelines. For example, have a fatal procedural defect like a failure to exhaust administrative remedies? No amendment will help you there; your dismissal without prejudice is likely appealable. But a routine case where the district court dismissed a complaint for pleading deficiencies? Easily cured by an amendment, and therefore not appealable. The court had consistently reached this result in unpublished opinions, and it used Goode to memorialize the rule in a precedential opinion. Because each of the district court’s grounds for dismissal was easily cured by amendment, its dismissal without prejudice was not appealable.
“But wait,” said Goode, “the district court never gave me leave to amend!”
“So what?” replied the panel. Even though the district court dismissed the case without leave to amend, Goode never affirmatively requested leave to amend (if leave to amend is even required after dismissal without prejudice, which is a question for another day). If he’d asked, the district court would have been almost constrained to grant leave to amend under Rule 15.
Finally, Goode pointed out that the district court had dismissed the case, not the complaint. Appellate courts in other jurisdictions have held that when a court dismisses the plaintiff’s entire action, rather than just the complaint, its order is appealable. The Fourth Circuit shrugged. It pointed out that there was no indication that the district court’s use of the word “case” instead of “complaint” was intended to have any special meaning.
All of which resulted in dismissal and remand.
tl;dr
Here are the main takeaways from Goode:
- An order dismissing a complaint without prejudice is an appealable final order when no amendment could save the plaintiff’s action.
- Always, always ask for leave to amend after a dismissal without prejudice.
- Trial courts and defendants continue to misapply Twiqbal.
Finally, some of you are probably wondering why I used such a trite image at the top of this post. Fair question. I used this picture because my stock photo service identified it as “judge hammer,” and something about the sheer illiteracy of that description speaks to me on a very deep level.