7th Circuit Appellate Court Rules Dismissal Without Prejudice Nonfinal Where District Court Wasn’t Through With Case

A pro se plaintiff filed four lawsuits, which were assigned to different judges, in which she complained that her children had been taken from her custody in violation of the law. Although the cases generally complained about the same subject matter, they never were consolidated.

The first three lawsuits ultimately were dismissed. But before those dismissals were entered, the fourth-filed case was dismissed without prejudice. Plaintiff appealed only from the dismissal in the fourth case. At the same time, she also moved to consolidate the four cases.

The district judge wrote a letter to plaintiff in response her two filings. With respect to the Notice of Appeal, the judge asked plaintiff for clarification of her position on the question of whether the complaint was duplicative of the first three lawsuits. The 7th Circuit Appellate Court chastised the district judge for writing the letter, explaining that it could confuse the parties about how to respond and about the true procedural posture of the case.

The jurisdictional question was whether the dismissal without prejudice was a final and appealable order. The court explained when a dismissal without prejudice is appealable. “A dismissal without prejudice is an appealable final order if it ends the suit so far as the district court is concerned … or if ‘there is no amendment a plaintiff could reasonably be expected to offer to save the complaint, or if a new suit would be barred by the statute of limitations.’ … But a dismissal without prejudice is not appealable if it amounts to merely telling the plaintiff ‘to patch up the complaint, or take some other easily accomplished step’; in that event it ‘is no more reviewable than the resolution of a discovery dispute or equivalent interlocutory ruling.’”

In this case, the appellate court ruled, the dismissal without prejudice was not final. The district court’s letter to plaintiff indicated the dismissal would be rescinded “if the plaintiff explained why her suit wasn’t a duplicate of the other suits … [I]t is clear that the judge doesn’t think she’s through with the case, and therefore the order of dismissal in nonfinal and unappealable.”

The whole case, Holmes v. Office of the Cook County Public Guardian, No. 06-3989 (9/24/07), is available by clicking here.