v. Advisorlaw LLC

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                             August 13, 2020

                               2020COA122

     No. 20CA0041, Wilson v. Advisorlaw LLC — Appeals —
Final Appealable Order; Civil Procedure — Failure to State a
Claim Upon Which Relief Can be Granted — Voluntary
Dismissal


     A division of the court of appeals examines whether a party’s

voluntary dismissal of some claims without prejudice can create a

final judgment allowing the appeal of claims previously dismissed

by the trial court with prejudice.

     Recognizing a split between federal courts, the division adopts

the “Ryan rule” that prohibits parties from voluntarily dismissing

claims without prejudice to circumvent finality hurdles. Ryan v.

Occidental Petroleum Corp., 

, 302 (5th Cir. 1978),

overruled on other grounds by Curtiss-Wright Corp. v. Gen. Elec. Co.,

 (1980). Applying that rule, the division concludes that
plaintiffs’ voluntary dismissal of their remaining claims without

prejudice, following the trial court’s dismissal of some claims with

prejudice under C.R.C.P. 12(b)(5), did not render the action final for

purposes of appeal. As a result, the court lacks jurisdiction to

consider the appeal.
COLORADO COURT OF APPEALS                                       2020COA122


Court of Appeals No. 20CA0041
Boulder County District Court No. 18CV31049
Honorable Thomas F. Mulvahill, Judge


Mark Wilson and Wilson Law Ltd.,

Plaintiffs-Appellants,

v.

Dochtor Daniel Kennedy; Joshua Charles Barber; Barber Enterprises, LLC;
Advisorlaw, LLC; and Stacy Santmyer,

Defendants-Appellees.


                                   ORDER

                                  Division A
                          Opinion by JUDGE GOMEZ
                         Furman and Dunn, JJ., concur

                          Announced August 13, 2020


HopkinsWay PLLC, Edward C. Hopkins Jr., Alexandra Tracy-Ramirez, Denver,
Colorado, for Plaintiffs-Appellants

Burns, Figa, & Will, P.C., Benjamin Figa, Dana L. Eismeier, Erik K. Schuessler,
Michael Y. Ley, Greenwood Village, Colorado, for Defendants-Appellees
¶1    This matter comes to us on a motion by defendants-appellees,

 Advisorlaw, LLC; Barber Enterprises, LLC; Joshua Charles Barber;

 Dochtor Daniel Kennedy; and Stacy Santmyer, to dismiss the

 appeal for lack of a final, appealable order. After the trial court

 granted defendants’ partial motion to dismiss, plaintiffs-appellants,

 Mark Wilson and Wilson Law Ltd., tried to create finality by

 dismissing their remaining claims without prejudice. Plaintiffs then

 filed a notice of appeal seeking review of the trial court’s ruling on

 the partial motion to dismiss. Defendants argue that plaintiffs’

 actions didn’t create a final judgment for purposes of appeal

 because a dismissal of claims without prejudice (as opposed to with

 prejudice) isn’t a final judgment. We agree. Therefore, we direct

 plaintiffs to cure the jurisdictional defect in their appeal within

 thirty-five days if they wish to proceed with the appeal. Otherwise,

 the appeal will be dismissed without prejudice for lack of

 jurisdiction.

                            I.   Background

¶2    Plaintiffs brought this civil action alleging that defendants

 published false and derogatory statements about plaintiffs on a

 public website and in two news articles. Plaintiffs asserted ten


                                    1
 claims, some against all five defendants and others against only

 some of them.

¶3     Defendants filed a partial motion to dismiss under C.R.C.P.

 12(b)(5). The trial court granted the motion, dismissing with

 prejudice five of plaintiffs’ claims in their entirety and another claim

 in part. This left four claims remaining, as well as part of a fifth

 claim. Plaintiffs voluntarily dismissed those remaining claims

 without prejudice under C.R.C.P. 41(a)(1)(A), and the trial court

 closed its case.

¶4     Plaintiffs then filed a notice of appeal with this court, seeking

 review of the trial court’s order granting the partial motion to

 dismiss. Defendants moved to dismiss the appeal on jurisdictional

 grounds.

                               II.   Applicable Law

¶5     A state statute confers initial jurisdiction in this court “over

 appeals from final judgments of . . . the district courts . . . .”

 § 13-4-102(1), C.R.S. 2019; see also C.A.R. 1(a)(1) (“An appeal to

 the appellate court may be taken from . . . [a] final judgment of any

 district . . . court . . . .”).




                                         2
¶6    Because this court’s jurisdiction is conferred by statute, we

 cannot expand its scope beyond this legislative grant. We have

 “no authority to expand [our] appellate jurisdiction” beyond that

 “‘specified by’ the General Assembly, and . . . cannot ‘modify the

 jurisdiction granted [us] by statute.’” People in Interest of L.R.B.,

 

, ¶ 15 (quoting Holdridge v. Bd. of Educ., 

, 450-51 (Colo. App. 1994); accord People v. Meyers, 

, 64, 

, 527 (1979)).

¶7    Thus, “[a] final judgment is a jurisdictional prerequisite to

 review on appeal.” Brody v. Bock, 

, 777 (Colo. 1995).

 A final judgment is one “which ends the particular action in which

 it is entered, leaving nothing further for the court pronouncing it to

 do in order to completely determine the rights of the parties

 involved in the proceeding.” Harding Glass Co. v. Jones, 

, 1125 n.2 (Colo. 1982) (quoting D.H. v. People, 

,

 544, 

, 6 (1977)). “A dismissal with prejudice is a final

 judgment; it ends the case and leaves nothing further to be resolved

 concerning the dispute between the parties.” Foothills Meadow v.

 Myers, 

, 1098 (Colo. App. 1992).




                                    3
¶8    Ordinarily, “an entire case must be decided before any ruling

 in that case can be appealed.” People v. G.S., 

, ¶ 37

 (quoting Cyr v. Dist. Court, 

, 770 (Colo. 1984)). But

 there are limited circumstances in which a party to a civil case may

 take an interlocutory appeal before an entire case is final. For

 instance, C.R.C.P. 54(b) “permits a trial court ‘to direct the entry of

 a final judgment as to one or more but fewer than all of the claims

 or parties’” if the court expressly determines there is no just reason

 for delay and expressly directs the entry of judgment. Id. at ¶ 39

 (quoting Lytle v. Kite, 

, 308 (Colo. 1986)). Also, under

 C.A.R. 4.2, this court has discretion, under certain circumstances,

 to permit an interlocutory appeal of a question of law certified by a

 trial court or stipulated to by the parties. Affiniti Colo., LLC v.

 Kissinger & Fellman, P.C., 

, ¶¶ 10-12; see also

 § 13-4-102.1(1), C.R.S. 2019. And, under C.A.R. 21, the supreme

 court has discretion to exercise its original jurisdiction over

 interlocutory matters. People v. Tafoya, 

, ¶ 13.1



 1 Other statutes and rules expressly permit interlocutory appeals,
 either as a matter of right or as a matter of court discretion, for
 certain types of civil rulings. See, e.g., § 13-20-901(1), C.R.S. 2019

                                     4
                              III.   Analysis

¶9     Defendants moved to dismiss this appeal because plaintiffs

  dismissed some of their claims without prejudice. Defendants cite

  Brody, in which our supreme court held that “[g]enerally, a trial

  court’s dismissal of a claim without prejudice does not constitute a

  final judgment for purposes of appeal because the factual and legal

  issues underlying the dispute have not been resolved.” 897 P.2d at

  777. Under this rule, defendants argue, plaintiffs’ dismissal

  without prejudice didn’t create the requisite finality to imbue this

  court with jurisdiction over their appeal. We agree.

¶ 10   Plaintiffs acknowledge that a final judgment is a prerequisite

  to review on appeal and that, under Brody, an order dismissing

  claims without prejudice generally doesn’t constitute a final order.

  But, they argue, their case falls within an exception to this general

  rule because the dismissal of some claims with prejudice under




  (orders granting or denying class certification); § 13-22-228(1),
  C.R.S. 2019 (orders concerning arbitration); § 24-10-108, C.R.S.
  2019 (orders concerning sovereign immunity); § 24-10-118(2.5),
  C.R.S. 2019 (same); C.A.R. 1(a)(3) (orders granting or denying
  temporary injunctions); C.A.R. 1(a)(4) (orders involving appointment
  or discharge of receivers). We are concerned here with matters that
  fall outside the scope of these exceptions.

                                     5
  Rule 12(b)(5) worked “in tandem” with the voluntary dismissal of

  the remaining claims without prejudice “to resolve all issues and

  claims and close the action.” In other words, plaintiffs assert that a

  voluntary dismissal without prejudice, coupled with a partial

  dismissal with prejudice, falls within an exception to the general

  rule precluding dismissals without prejudice from being final for

  appellate purposes.

¶ 11   We agree that there are exceptions to the general rule.

  Notably, if a case cannot be resurrected — for instance, if the

  claims would be time barred or would be precluded from reassertion

  based on the court’s ruling — then the judgment is considered final

  and appealable despite the dismissal of one or more claims without

  prejudice. See, e.g., Spiremedia Inc. v. Wozniak, 

, ¶ 14

  (“[A] dismissal without prejudice is a final judgment if the statute of

  limitations period has expired or the dismissal otherwise results in

  prohibiting further proceedings.”); Avicanna Inc. v. Mewhinney,

  

, ¶ 1 n.1 (“Where . . . the circumstances of the case

  indicate that the action cannot be saved and that the district court’s

  order precludes further proceedings, dismissal without prejudice

  qualifies as a final judgment for the purposes of appeal.”).


                                     6
¶ 12   But no Colorado authority supports application of an

  exception when some claims are dismissed with prejudice while

  others are voluntarily dismissed without prejudice under C.R.C.P.

  41(a)(1). Plaintiffs cite Burden v. Greeven, 

 (Colo. App.

  1998), but that case doesn’t support such an exception. In Burden,

  the trial court granted the defendants’ C.R.C.P. 12(b)(2) motion to

  dismiss for lack of personal jurisdiction, and then determined that

  the plaintiff’s C.R.C.P. 41(a)(1) notice of voluntary dismissal (filed

  while the motion to dismiss was pending) was moot. 

. A division of this court recognized that it had jurisdiction over

  an appeal from those rulings because, notwithstanding that the

  dismissal was without prejudice, the trial court’s ruling on the issue

  of personal jurisdiction meant “the action cannot be saved by

  amendment to the complaint.” 

 Burden, therefore, falls within

  the same exception noted above. Cf. Wilbourn v. Hagan, 

, 485-86 (Colo. App. 1986) (a dismissal based on determination

  that the defendants weren’t subject to personal jurisdiction under

  Colorado’s long-arm statute “constituted a final determination that

  [the] defendants were not subject to the court’s jurisdiction . . .

  [and] is therefore a final order for purposes of appeal”).


                                      7
¶ 13   The common feature which Burden and these other cases

  share — but which this case does not — is the plaintiffs’ inability to

  pursue the claims further, in either the same or a later action.

  Although the claims in those cases had been dismissed without

  prejudice, other limitations, like the statute of limitations or the

  bounds of personal jurisdiction, barred their reassertion. There is

  no indication that any such limitation exists here, so nothing would

  preclude plaintiffs from reasserting the very same claims they

  dismissed without prejudice.

¶ 14   Although no Colorado case has examined whether a party’s

  voluntary dismissal of some claims without prejudice can create a

  final judgment allowing the appeal of claims previously dismissed

  with prejudice, several federal courts, including the United States

  Court of Appeals for the Tenth Circuit, have. Following the

  so-called “Ryan rule,” the Tenth Circuit has declared that “[p]arties

  may not confer appellate jurisdiction upon us by obtaining a

  voluntary dismissal without prejudice of some claims so that others

  may be appealed.” Heimann v. Snead, 

, 769 (10th Cir.




                                     8
  1998).2 And, when confronted with the precise circumstance

  presented in this case, the Tenth Circuit held that “when a plaintiff

  voluntarily requests dismissal of her remaining claims without

  prejudice in order to appeal from an order that dismisses another

  claim with prejudice, we conclude that the order is not ‘final’ for

  purposes of [28 U.S.C.] § 1291.” Cook v. Rocky Mountain Bank Note

  Co., 

, 148 (10th Cir. 1992).

¶ 15   Although cases among the federal circuits (and even within

  some circuits) are in conflict, several decisions espouse this same

  bright line rule. See, e.g., Blue v. D.C. Pub. Schs., 

, 17

  (D.C. Cir. 2014) (“[O]ur circuit treats voluntary but non-prejudicial




  2 The “Ryan rule” is named after a case from the Fifth Circuit that
  first adopted the rule prohibiting parties from voluntarily dismissing
  claims without prejudice to circumvent finality hurdles. Ryan v.
  Occidental Petroleum Corp., 

, 302 (5th Cir. 1978) (“[A]
  voluntary dismissal is not appealable by the plaintiff in the absence
  of some condition adverse to him. This is because in a voluntary
  dismissal a plaintiff gets what he seeks, i.e., a dismissal without an
  adjudication on the merits, and he is entitled to bring a later suit on
  the same cause of action. Thus, although the plaintiff here
  attempts to appeal only the adverse rulings dismissing and striking
  all of or parts of [some portions] of his complaint, he cannot convert
  these rulings into a final judgment . . . .”) (citations omitted),
  overruled on other grounds by Curtiss-Wright Corp. v. Gen. Elec. Co.,
  

 (1980).

                                     9
dismissals of remaining claims as generally insufficient to render

final and appealable a prior order disposing of only part of the

case.”); Arrow Gear Co. v. Downers Grove Sanitary Dist., 

, 636 (7th Cir. 2010) (“[A] decision is not final for purposes of

appellate jurisdiction if the court rendering it has dismissed one or

more of the plaintiff’s claims, or one or more of the defendants, with

leave to refile.”); Rabbi Jacob Joseph Sch. v. Province of Mendoza,

, 210-11 (2d Cir. 2005) (“[I]mmediate appeal is

unavailable to a plaintiff who seeks review of an adverse decision on

some of its claims by voluntarily dismissing the others without

prejudice.”); Swope v. Columbian Chems. Co., 

, 192-93

(5th Cir. 2002) (“It is a settled rule in the Fifth Circuit that appellate

jurisdiction over a non-final order cannot be created by dismissing

the remaining claims without prejudice.”); State Treasurer v.

Barry, 

, 13 (11th Cir. 1999) (“[V]oluntary dismissals,

granted without prejudice, are not final decisions themselves and

also do not transform an earlier partial dismissal or partial

summary judgment order into a final decision.”); see also Waugh

Chapel S., LLC v. United Food & Commercial Workers Union Local 27,

, 359 (4th Cir. 2013) (allowing appeal to proceed only


                                   10
  by deeming the voluntary dismissal to be with prejudice); Tiernan v.

  Devoe, 

, 1031 (3d Cir. 1991) (allowing appeal to

  proceed only after the appellants “renounced . . . any intention to

  take further action” on the claims dismissed without prejudice).

¶ 16   Even where they espouse a bright line rule, however, the

  courts have often recognized exceptions, for instance where parties

  dismissed some claims without prejudice before (rather than after)

  other claims were resolved on the merits, see, e.g., Barone v. United

  Airlines, Inc., 355 F. App’x 169, 179 (10th Cir. 2009) (unpublished

  opinion); Schoenfeld v. Babbitt, 

, 1265-66 (11th Cir.

  1999), where the claims that were dismissed without prejudice

  couldn’t be reasserted for other reasons (such as the running of the

  statute of limitations or an adverse legal ruling that would preclude

  a claim), see, e.g., Arrow Gear, 

; Barone, 355

  F. App’x at 179; Jackson v. Volvo Trucks N. Am., Inc., 

, 1238 (10th Cir. 2006), or where other circumstances

  warranted consideration of the appeal, see, e.g., 84 Lumber Co. v.

  Cont’l Cas. Co., 

, 333 (5th Cir. 2019) (a plaintiff can

  appeal an adverse ruling even if the defendant, following the ruling,

  dismisses its remaining third party claim without prejudice).


                                    11
¶ 17   Some courts, however, have adopted more lenient approaches,

  allowing parties to create finality in much the same way plaintiffs

  did here, particularly if the trial court approved the voluntary

  dismissal and if there was no intent to manipulate appellate

  jurisdiction. See, e.g., James v. Price Stern Sloan, Inc., 

, 1070 (9th Cir. 2002) (“[W]hen a party that has suffered an

  adverse partial judgment subsequently dismisses remaining claims

  without prejudice with the approval of the district court, and the

  record reveals no evidence of intent to manipulate our appellate

  jurisdiction, the judgment entered after the district court grants the

  motion to dismiss is final and appealable . . . .”); Hicks v. NLO, Inc.,

  

, 120 (6th Cir. 1987) (“[P]laintiff’s dismissal with the

  concurrence of the court of the only count of her complaint which

  remained unadjudicated imparted final[i]ty to the District Court’s

  earlier order granting summary judgment.”). Plaintiffs point out

  that at least one state — Oklahoma — has adopted such an

  approach. See Raven Res., L.L.C. v. Legacy Bank, 

,

  1278 (Okla. Civ. App. 2009) (“[A]n order of dismissal that

  terminates an action without prejudice is appealable even though a

  new suit might later be brought on the same claim against the same


                                     12
  defendants.’” (quoting Patmon v. Block, 

, 543 (Okla.

  1993))).

¶ 18   We find the reasoning supporting the bright line rule to be

  compelling and, therefore, we adopt that rule. The federal circuits

  have outlined various reasons supporting this rule, most of which

  apply equally in this state.

¶ 19   First, the circuits have invoked the concerns of judicial

  efficiency and the prevention of piecemeal appeals — concerns that

  underlie the final judgment rule in Colorado as well as in the federal

  system. See Harding Glass, 640 P.2d at 1127 (expressing concern

  for “avoid[ing] the dissipation of judicial resources through

  piecemeal appeals”) (citing federal authorities).

¶ 20   As one court explained, “exercising jurisdiction” in split

  judgment cases, where some claims are dismissed with prejudice

  and some without, “would undermine the policies of judicial

  efficiency, avoiding piecemeal litigation, and district court

  independence that are the basis of the final judgment rule.” Barry,

  

 (quoting Constr. Aggregates, Ltd. v. Forest

  Commodities Corp., 

, 1336 (11th Cir. 1998)); accord

  Blue, 764 F.3d at 18 (“Non-prejudicial dismissals of remaining


                                     13
  parties . . . [or] claims . . . could be used to generate overlapping

  lawsuits, piecemeal appeals, and splintered and harassing

  litigation.”); Arrow Gear, 

 (“[Appellant’s] maneuver,

  if allowed, would prevent the entirety of the contested issues,

  involving all the parties, from being resolved in a single appeal; it

  would exemplify piecemeal appealing, which is disfavored in the

  federal court system.”); Rabbi Jacob Joseph Sch., 

  (“Tolerance of that practice would violate the long-recognized federal

  policy ‘against piecemeal appeals.’”) (citation omitted).

¶ 21   Second, the courts have reasoned that split judgments are not

  actually final. While one might argue that in such a case the

  litigation has technically ended and the trial court has nothing

  further to do but execute the judgment, in actuality “the litigation

  has not been terminated on the merits” because the dismissal

  without prejudice “is not an adverse final ruling” and “leaves the

  dismissed claim for another day.” Barry, 

; see also

  Cook, 

 (noting that the plaintiff “remains free to file

  another complaint raising those same claims”); Arrow Gear, 

 (expressing similar concerns).




                                     14
¶ 22   Third, the courts have raised concerns about circumvention of

  the available avenues for interlocutory review — particularly Fed. R.

  Civ. P. 54(b), which is comparable to C.R.C.P. 54(b). See Allison v.

  Engel, 

, ¶ 25 n.3. For instance, after the trial court in

  Cook declined to grant Fed. R. Civ. P. 54(b) certification on a claim

  that had been dismissed with prejudice, the plaintiff dismissed the

  other claims without prejudice and tried to appeal anyway. 

. In response, the Tenth Circuit wrote, “a plaintiff

  cannot be allowed to undermine the requirements of Rule 54(b) by

  seeking voluntarily [sic] dismissal of her remaining claims and then

  appealing the claim that was dismissed with prejudice.” 

¶ 23   Another circuit court put it more bluntly:

            [R]outinely allowing appeals from
            non-prejudicial dismissals would undermine
            Rule 54(b)’s careful limits on piecemeal
            appeals. If a party’s non-prejudicial dismissal
            of any still-pending claims could, without
            more, render final and appealable any earlier
            order disposing of other claims, litigants, not
            district judges, would control the timing of
            appeal. Parties could agree to appeal their suit
            in stages, periodically dismissing all remaining
            claims without prejudice as they went,
            agreeing to reinstate them once the court of
            appeals weighed in on individual issues. The
            resulting fragmentary appeals would burden
            courts and litigants, foster uncertainty, and


                                    15
             undermine the salutary aims that Rule 54(b)
             and the final judgment rule promote.

  Blue, 764 F.3d at 18; see also Barry, 

 (“[R]epealing

  Ryan’s rule significantly erodes Rule 54(b).”).

¶ 24   Fourth, the courts have held that parties have adequate

  alternative options — including waiting until the final claims are

  resolved to take an appeal, dismissing any remaining claims with

  prejudice, or taking an interlocutory appeal under Fed. R. Civ. P.

  54(b) or 

(b) (2018), if appropriate — to protect their

  interests and provide access to appellate review. For instance,

  before recently changing course on its rule, the Eleventh Circuit

  recognized that, although it may lead litigants to confront difficult

  choices about which steps to take, Ryan’s rule doesn’t permanently

  deny an appeal. Barry, 168 F.3d at 15-16.3 “Instead, what denies a

  party an appeal is the strategic choice an appellant makes in




  3 The Eleventh Circuit recently acknowledged its conflicting case
  law on the issue and reverted to its earliest-precedent rule — that
  “an order granting a motion to voluntarily dismiss the remainder of
  a complaint under Rule 41(a)(2) ‘qualifies as a final judgment for
  purposes of appeal.’” Corley v. Long-Lewis, Inc., ___ F.3d ___, ___,
  No. 18-10474, 

, at *5 (11th Cir. July 16, 2020)
  (quoting McGregor v. Bd. of Comm’rs, 

, 1020 (11th
  Cir. 1992)).

                                    16
  attempting to craft appellate jurisdiction by dismissing, or agreeing

  to the opposing party’s dismissing, a remaining claim without

  prejudice in order to appeal an adverse non-final decision over other

  claims.” Id. at 16; see also Swope, 

 (“[T]he Ryan

  rule requiring Rule 54(b) certification to create finality will not

  prevent an appeal where one is warranted.”).

¶ 25   Finally, the courts have recognized the bright line rule’s

  advantages of predictability and avoiding inquiry and speculation

  about a party’s motivations. See, e.g., Williams v. Seidenbach, 

, 357 (5th Cir. 2020) (“[T]he malleable, case-by-case

  approach . . . enervates § 1291 finality, and predictability, by

  inviting inconsistent intra-circuit outcomes.”); Swope, 

 (“[W]e . . . reject the ‘practice of combing the record for

  manipulative intent’ since it ‘waste[s] resources better spent on the

  merits of an appeal.’”) (citation omitted).

¶ 26   In particular, making jurisdictional decisions based on

  whether parties “inten[ded] to manipulate . . . appellate

  jurisdiction,” as the Ninth Circuit does, can be highly subjective

  and uncertain. James, 

. It’s not entirely clear

  what courts mean by “an intent to manipulate appellate


                                     17
  jurisdiction,” as in most cases the whole point of dismissing

  remaining claims is to create finality and allow an immediate appeal

  of an earlier adverse order. But, as examples, the Ninth Circuit has

  found an “intent to manipulate” in circumstances where the parties

  stipulated that the plaintiff could reinstate the dismissed claims if

  the judgment was reversed on appeal, where the plaintiff refiled the

  dismissed claims in a new case simultaneously with taking an

  appeal in the first case, and where a plaintiff refused to proceed on

  his or her claims, prompting the court to dismiss those claims for

  failure to prosecute, and then used that dismissal to appeal an

  interlocutory procedural ruling. See 

 (summarizing

  cases). The bright line approach creates more certainty and

  predictability by avoiding the need to inquire into such facts (which

  may lie outside the record) or to make distinctions based on

  assumptions about the parties’ actions and motivations.

¶ 27   Plaintiffs argue that the bright line rule is wrong, as it conflicts

  with United States Supreme Court precedent. But the case they

  cite, United States v. Wallace & Tiernan Co., 

 (1949), is

  distinguishable. In that case, the trial court dismissed an antitrust

  action without prejudice after denying a motion to compel discovery


                                     18
  that was essential for the government to prove its antitrust claims.

  

 at 794 n.1. The Supreme Court held the government’s appeal

  could proceed, notwithstanding that the dismissal was without

  prejudice, because the government hadn’t sought the dismissal and

  because the trial court’s discovery ruling had effectively concluded

  the case. See 

 (“The record fails to sustain appellees’ contention

  that the Government invited the court to enter this order denying

  relief and dismissing the action. That the dismissal was without

  prejudice to filing another suit does not make the cause

  unappealable, for denial of relief and dismissal of the case ended

  this suit so far as the District Court was concerned.”). It’s clear

  from the opinion that, without the subject discovery, the

  government couldn’t pursue its claims. Thus, the Supreme Court’s

  ruling is consistent with the circuit decisions holding, even under

  the bright line approach, that where claims dismissed without

  prejudice can’t be reasserted for other reasons, they are considered

  final for appellate purposes. See, e.g., Arrow Gear, 

; Jackson, 

.

¶ 28   Plaintiffs also argue that they shouldn’t be punished for

  exercising their “right to dismiss an action without question or


                                    19
  punishment.” But plaintiffs retain the right, under C.R.C.P.

  41(a)(1), to dismiss their claims before an answer or summary

  judgment motion is filed or at any time thereafter upon stipulation

  of all the parties. They simply can’t use such a dismissal to create

  finality as to an earlier, adverse order.

¶ 29   Finally, plaintiffs argue that they should be able to opt for

  what they perceive as a more efficient and inexpensive resolution of

  their claims and issues. Plaintiffs note, correctly, that there was no

  guarantee they would’ve been permitted to take an interlocutory

  appeal under either C.R.C.P. 54(b) or C.A.R. 4.2. The scope of

  interlocutory appeals available under these rules is limited — and

  purposefully so. Those limitations reflect careful consideration by

  the General Assembly (for instance, in its enactment of section

  13-4-102.1(1), which prompted the adoption of C.A.R. 4.2) and the

  Colorado Supreme Court Civil and Appellate Rules Committees to

  balance the interests of allowing interlocutory appeals in limited

  circumstances with the interests of maximizing judicial efficiency

  and minimizing piecemeal appeals.

¶ 30   The requirements for taking interlocutory appeals under the

  rules reflect that careful balance. See, e.g., Harding Glass, 640


                                     20
  P.2d at 1127 (C.R.C.P. 54(b) requires, among other things, that an

  entire claim for relief be finally adjudicated, a requirement that

  “avoid[s] the dissipation of judicial resources through piecemeal

  appeals”); Affiniti Colo., ¶ 12 (review under C.A.R. 4.2 requires,

  among other things, that “immediate review may promote a more

  orderly disposition or establish a final disposition of the litigation”);

  see also People v. Tafoya, 

, ¶ 13 (C.A.R. 21 review is “an

  extraordinary remedy that is limited both in its purpose and

  availability” but may apply, for instance, in situations where “an

  appellate remedy would be inadequate, . . . a party may suffer

  irreparable harm absent relief, . . . [or a] case[] . . . ‘raise[s] issues of

  significant public importance that [the supreme court] ha[s] not yet

  considered’” (quoting Wesp v. Everson, 

, 194 (Colo.

  2001))) (citations omitted).

¶ 31   Where a case doesn’t satisfy the requirements of the rules,

  allowing an interlocutory appeal would upset that carefully crafted

  balance and would thwart the legislature’s and the rule committees’

  intent. It would also be inappropriate, in our view, given the limited

  statutory jurisdiction of our court.




                                       21
¶ 32   Plaintiffs thus had five options when the trial court dismissed

  some, but not all, of their claims with prejudice:

           litigate the remaining claims to finality and then proceed

            with an appeal of the entire case;

           dismiss their remaining claims with prejudice, which

            would have created a final judgment, see Foothills

            Meadow, 

;

           seek certification of the dismissed claims under C.R.C.P.

            54(b), if appropriate, and, if the trial court granted the

            certification, file an appeal as to those claims;

           pursue an interlocutory appeal to this court through

            C.A.R. 4.24; or

           pursue an original proceeding in the supreme court

            through C.A.R. 21.

¶ 33   We express no opinion as to whether the resolved claims and

  issues would satisfy the requirements of C.R.C.P. 54(b) or C.A.R.

  4.2. We simply note that these were some of the paths available to



  4 To pursue this option, plaintiffs would’ve had to seek certification
  by the trial court or submit a stipulation signed by all parties within
  fourteen days of the order they wished to appeal. C.A.R. 4.2(c).

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  plaintiffs for taking an interlocutory appeal, and that plaintiffs

  didn’t attempt to pursue them before taking this appeal.

                             IV.   Conclusion

¶ 34   For the foregoing reasons, we conclude that plaintiffs’

  voluntary dismissal of their remaining claims without prejudice,

  following the trial court’s dismissal of some claims with prejudice

  under C.R.C.P. 12(b)(5), did not render the action final for purposes

  of appeal. As a result, this court currently lacks jurisdiction to

  consider the appeal. See Brody, 897 P.2d at 777.

¶ 35   However, we will defer a ruling on defendants’ motion to

  dismiss the appeal for thirty-five days to allow plaintiffs a chance to

  correct the jurisdictional defect. They may either obtain a C.R.C.P.

  54(b) certification (if appropriate) or dismiss with prejudice the

  unadjudicated claims, if they wish to do so. If plaintiffs do not

  obtain and present to this court such a certification or dismissal

  within that time period, the appeal will be dismissed without

  prejudice for lack of appellate jurisdiction.

       JUDGE FURMAN and JUDGE DUNN concur.




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