Lights, Camera, (Less Than an) Action!


By: Elissa B. Haynes and Carlos A. Fernández

Usually, the courts do not take issue when litigating parties stipulate to an agreement—especially when the parties are agreeing to dismiss claims. However, the courts will not turn a blind eye to civil procedure, no matter how useful the stipulation may be. Recently, in Rosell and Gonzalez vs. VSMB, LLC the United States Court of Appeals for the Eleventh Circuit clarified what has been implied in Fed. R. Civ. P. 41(a) “for almost two decades”—stipulations to dismiss less than an action.

At the trial level, plaintiffs and defendant filed their cross motions to dismiss two out of the three litigated claims. While the parties awaited the trial court’s ruling, they agreed to dismiss the one remaining claim. The trial court approved the settlement and directed the parties to “file a joint stipulation of dismissal.” As any intelligent attorney would do, the parties listened to the court and filed their joint stipulation of dismissal. The court granted the motion for summary judgment, and plaintiffs filed their appeal.

Interestingly, the Eleventh Circuit ruled it was not able to review the trial court’s summary judgment ruling because there was no final judgment in the action. The Court further the held the joint stipulation under Rule 41(a) was void and the attempted-to-be-dismissed claim was still pending before the trial court. Specifically, the Court explained Rule 41(a) governs the procedure for dismissing an action, not a claim. Because, both, Rule 41(a) (1) and (2) do not authorize the dismissal of a claim, the Eleventh Circuit lacked jurisdiction while there was a pending claim at the trial court level. Before signing off, the panel of three judges recommended future litigants “plan around” the dismissal of less than an action and consider seeking partial final judgment under Rule 54(b).

This case highlights the importance of a thorough understanding of—and keeping up to date on—the Georgia and Federal Rules of Civil Procedure. A copy of the Eleventh Circuit’s Order can be found here. For additional questions, please contact Elissa B. Haynes at, Carlos A. Fernández at directly, or your local FMG attorney.