Plaintiff's Requested Dismissal May Provide Controverted Final Judgment for Appeal
Before a circuit court may review an appeal, the court must be satisfied that it has jurisdiction. A statute must confer jurisdiction, and the award that the plaintiff seeks must be within constitutional limits. Section 1291 permits appeals from final judgments. 28 U.S.C. 1291. A dismissal with prejudice is a final judgment because a loss on appeal ends the case; plaintiff may not re-file. A voluntary dismissal will not support an appeal because the plaintiff may bring the case again, assuming the statute of limitations has not expired. The appellant also must be adverse to a final judgment. If the plaintiff requests a dismissal so the she may refile elsewhere, she is not adverse to the judgment, so there is no case or controversy. A controversy exists if an interlocutory order is case dispositive, and the plaintiff asks the court to dismiss the case so that the plaintiff may obtain appellate review of the purportedly erroneous order. In OFS Fitel, LLC v. Epstein, Becker and Green, P.C., 07-10200 (11th Cir. Nov. 28, 2008), the dismissal was final and adverse because the district court order disallowing plaintiff's expert's testimony effectively disposed of the plaintiff's negligence case. A 1292(b) permissive appeal was not an adequate substitute for the 1291 appeal from final judgment because the threshold for a discretionary interlocutory appeal from an interlocutory discovery order is extremely high, making appellate review difficult to obtain via 1292(b) certification.
