Thanks to SCOTUSBLOG for cluing us into a new cert petition.
If you do not love civil procedure, then read no further.
Last year, the Ninth Circuit held that a plaintiff could appeal from a judgment based on a "dismissal without prejudice." The underlying case is a securities action. The defendant prevailed on a motion to dismiss under Rule 12(b)(6), but the trial court allowed the plaintiff to file an amended complaint (presumably to address the sufficiency of the pleading). Opting to not amend its complaint, the plaintiff sought to have a "judgment of dismissal without prejudice" entered. The trial court complied.
On appeal, the Ninth Circuit found this process (appealing a dismissal without prejudice) to be entirely permissible. The Ninth Circuit's decision is here.
The defendant sought review from the U.S. Supreme Court. The cert petition is here and Court docket is here.
Question Presented:
When a district court dismisses claims under Rule 12(b)(6) without prejudice and grants the plaintiff leave to amend, the plaintiff sometimes decides to take an immediate appeal instead of amending its complaint. The procedure by which a plaintiff may forgo amendment and pursue an appeal in response to a dismissal without prejudice varies widely across the federal circuits. Here, the plaintiff requested and received a formal judgment of dismissal without prejudice in order to facilitate its appeal. The question presented is: Whether the Ninth Circuit erred by holding that a district court may enter a judgment dismissing a claim without prejudice for the express purpose of enabling a plaintiff to appeal the 12(b)(6) dismissal of that claim instead of amending it.
The Petitioner notes that there is harm to the principle of finality if a court allows an appeal from a dismissal without prejudice.
There is a circuit split, as noted by Petitioner, and the Supreme Court is the ultimate arbiter for the Rules of Civil Procedure.
