In recent decades, the paths from federal district courts to the federal circuit courts of appeals have narrowed considerably. Appeals through rule 54(b), section 1292(b), the collateral order doctrine, and other litigants and judges to test the limits of the most prevalent appellate path-appeal from a final judgment. This Article argues that the purposes of the final judgment rule, including judicial economy, are served, not hindered, by voluntary dismissals with prejudice of peripheral claims to render final an earlier ruling that decided the heart of the litigation.
First, this Article profiles the district court cases in which peripheral claims dismissals typically occur. Then, the Article offers the contradictory appellate court responses to this dismissal practice.
The Article next contends that this controversial dismissal practice presents further evidence of ways in which the final judgment rule6 has been shaped by a caseload "crisis in volume" at both the trial and appellate levels. This volume has given rise to trial and appellate
court case management techniques, designed to resolve cases before trial and to resolve appeals before briefing or oral argument. Trial courts have encouraged settlement by giving more autonomy to litigants to resolve their disputes and end the litigation, but some appellate courts find this trend goes too far when it includes concerted, deliberate efforts to create a final judgment. The growing reluctance of appellate courts to exercise their discretion in accepting rule 54(b), section 1292(b) and other discretionary appeals is analyzed as a case management mechanism.
Cochran, Rebecca A.
"Gaining Appellate Review by "Manufacturing" A Final Judgment Through Voluntary Dismissal of Peripheral Claims,"
Mercer Law Review: Vol. 48:
3, Article 2.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol48/iss3/2