Appeal time runs from stipulation of dismissal filing—not subsequent order

Fed. R. Civ. P. 41(a)(1)(A)(ii) provides that an action may be dismissed, without a court order, by filing “a stipulation of dismissal signed by all parties who have appeared.” Almost invariably, however, district courts respond to the filing of a stipulation of dismissal with their own order of dismissal, as if to make the dismissal official.  In Love v. Wal-Mart Stores, Inc., 2017 WL 3301353 (11th Cir. Aug. 3, 2017), the Eleventh Circuit analyzed which of these two filings—the stipulation or the order—commences the time running for the filing of a notice of appeal.

In an opinion for the court by visiting D.C. Circuit Judge Douglas Ginsburg, the court held that the earlier stipulation filing triggered the 30-day appeal period under Fed. R. App. P. 4(a)(1)(A). The court accordingly dismissed the appeal as untimely.  The would-be appellants argued that the appeal time should run from the filing of the subsequent order of dismissal, which would have qualified their appeal as timely.  The court found the plain text of Rule 41 to control and characterized the unnecessary subsequent dismissal order as “shooting a dead horse.”  (A recent Eighth Circuit decision, Adams v. USAA Casualty Insurance Co., 2017 WL 3136919 (8th Cir. July 25, 2017), construed Rule 41(a)(1)(A) to the same effect.)

The appellants sought unsuccessfully to appeal the district court’s dismissal of classwide employment discrimination claims asserted by female Wal-Mart employees in the southeastern United States, in a spinoff of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).  The appeal was brought by would-be intervenors following the settlement of the individual claims of the named class representatives and the filing of a stipulation of dismissal of those claims.  The district court had also denied the motion to intervene, but the Eleventh Circuit deemed that issue moot because the appellants sought to appeal only to challenge the dismissal of the class claims.

Posted by Tom Byrne.

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