Appeals of Dismissal


The general federal appellate jurisdiction statute allows appeals from an order dismissing a civil action in federal court with prejudice.  However, appeals do not follow from a dismissal without prejudice order unless the plaintiff can no longer amend the complaint or unless the plaintiff declares an intention to stand on the complaint as dismissed, because the plaintiff is free to amend his or her pleading and continue the litigation.  If a plaintiff can cure the deficiency and refile the complaint, an appeal would not be appropriate.

An order dismissing a state civil action is appealable, even when the case is dismissed without prejudice to the filing of another action, whereas an order dismissing a cause which also grants additional time to file an amended complaint is not appealable.

If the plaintiff fails to notify the district court about an intention to stand on the dismissed complaint, appeal does not lie from an order dismissing a complaint without prejudice.

A voluntary dismissal of claims that remain after a grant of defendant’s motion for partial summary judgment is not final and therefore not appealable even if the defendant has not responded to the plaintiff’s remaining claims by way of answer or motion, where nothing prevents the plaintiff from later pursuing the dismissed claims.  However, a voluntary dismissal without prejudice of the remaining defendant renders immediately appealable a previous order dismissing the claims against the other defendant, such that certification is not necessary to render the dismissal order final and appealable.

Usually, an order dismissing a counterclaim issued before disposing the case completely is not final and therefore not appealable.  However, a trial court’s order dismissing a counterclaim or cross-bill that determines the action effectively may be taken as final and appealable.  If the counterclaim arises out of a different subject matte, an order dismissing such a counterclaim may be final and appealable.  In addition, where a trial court’s order dismissing a counterclaim or cross-bill effectively determines the action, the order is final and appealable.