Swisher International, Inc. v. Trendsettah USA, Inc., et al.

In Microsoft Corp. v. Baker, this Court held that federal appellate courts do not “have jurisdiction under [28 U.S.C.] § 1291 . . . to review an order denying class certification . . . after the named plaintiffs have voluntarily dismissed their claims with prejudice.” 582 U.S. 23, 36 (2017). The Court reasoned that this “dismissal tactic”—in which plaintiffs abandon their claims in order to manufacture immediate appellate review—impermissibly “undercut[ ]” a “discretionary regime” governing interlocutory appeals. Id. at 39. Three Justices concurred on the ground that appellate jurisdiction was lacking under Article III. Id. at 42– 46 (Thomas, J., concurring in the judgment). In this case, the district court granted defendant relief from judgment under Federal Rule of Civil Procedure 60 and ordered a new trial. The district court certified that ruling for interlocutory review under 28 U.S.C. § 1292(b), but the Ninth Circuit declined to hear the appeal and also denied plaintiffs’ subsequent petition for a writ of mandamus. Dissatisfied with the Ninth Circuit’s refusal to permit an interlocutory appeal, plaintiffs then voluntarily dismissed their claims with prejudice for the express purpose of filing an immediate appeal under 28 U.S.C. § 1291. Construing Microsoft as limited to appeals of orders concerning class certification, the Ninth Circuit held that it possessed appellate jurisdiction—and, after further proceedings on remand, declined to revisit that holding. The question presented is: Does an appellate court have jurisdiction under 28 U.S.C. § 1291 and Article III when a plaintiff voluntarily dismisses its claims with prejudice in order to obtain review of an interlocutory ruling?