Israel Rosell, et al. v. VMSB, LLC

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11325
____________________
ISRAEL ROSELL and ROBERTO GONZALEZ,
for themselves and on behalf of those similarly situated,
Plaintiffs-Appellants,
versus
VMSB, LLC,
a Florida Limited Liability Company
d.b.a. Gianni’s,
d.b.a. CASA CASUARINA,
Defendant-Appellee.
____________________
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2 Opinion of the Court 22-11325
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-20857-KMW
____________________
Before J ILL PRYOR , GRANT, and H ULL , Circuit Judges.
G RANT, Circuit Judge:
Today we make explicit what our precedent has implied for
almost two decades: Federal Rule of Civil Procedure 41(a)(2)
provides only for the dismissal of an entire action. Any attempt to
use this rule to dismiss a single claim, or anything less than the
entire action, will be invalid—just like it would be under Rule
41(a)(1). Because the parties here attempted to use Rule 41(a) to
dismiss a single count and not an entire lawsuit, a final judgment
was never rendered. We thus lack jurisdiction to hear this appeal,
so we dismiss it.
I.
Israel Rosell and Roberto Gonzalez were employees of
VMSB’s restaurant. They argue that VMSB failed to meet its
minimum wage and overtime pay obligations under the Fair Labor
Standards Act and comparable Florida laws. Specifically, they say
that a “service charge” collected from customers and divided
among staff was in fact a tip that should not have counted as part
of their regular rate of pay. And they claim that VMSB is estopped
from asserting that the service charge is not a tip because of
statements made in its tax returns. This posture parallels an
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22-11325 Opinion of the Court 3
argument we previously considered—and rejected—in Compere v.
Nusret Miami, LLC, 28 F.4th 1180, 1181–82, 1187 (11th Cir. 2022).
Rosell and Gonzalez’s complaint alleged three counts, and
both sides filed cross-motions for summary judgment. In 2021, a
magistrate judge recommended granting partial summary
judgment for VMSB on Counts I and II (the federal and state
minimum wage claims) and denying summary judgment to both
sides on Count III (the federal overtime claim). While the district
court was considering the magistrate judge’s report and
recommendation, the parties settled Count III. Without
opposition, the plaintiffs moved the district court to approve the
settlement and to “direct the clerk to dismiss Count III” with
prejudice.
The district court ultimately adopted the magistrate judge’s
report and recommendation and entered judgment for VMSB on
Counts I and II. The next day, it issued an order scrutinizing the
settlement, as our precedent requires in certain Fair Labor
Standards Act cases. See Lynn’s Food Stores, Inc. v. United States, 679
F.2d 1350, 1353 (11th Cir. 1982). The district court’s order approved
the settlement and closed the case—but it also directed the parties
to “file a joint stipulation of dismissal of Count 3 with prejudice”
within 30 days and added that the “stipulation shall be self-
executing upon its filing.” Rosell and Gonzalez then filed a notice
of appeal regarding Counts I and II.
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4 Opinion of the Court 22-11325
II.
We have a sua sponte obligation to consider our subject
matter jurisdiction, which we review de novo. Univ. of S. Alabama
v. Am. Tobacco Co., 168 F.3d 405, 408–10 (11th Cir. 1999).
III.
Federal Rule of Civil Procedure 41 governs the “Dismissal
of Actions” in general, and Rule 41(a) outlines the procedure for
voluntary dismissals at the parties’ request. Rule 41(a)(1) explains
how a plaintiff can dismiss an “action” without a court order, and
Rule 41(a)(2) specifies when an “action” can be dismissed at
plaintiff’s request by court order. Here, neither the court nor any
party explained which subsection of Rule 41(a) authorized the
dismissal.1 But we need not decide how to classify it, because the
dismissal was procedurally improper either way.
1 At oral argument, VMSB conceded that the dismissal of Count III was an
attempted voluntary dismissal under Federal Rule of Civil Procedure 41(a),
without specifying whether it was a Rule 41(a)(1) or 41(a)(2) dismissal. Rosell
and Gonzalez responded that because the district court cited Lynn’s Food Stores
when scrutinizing the settlement for fairness, it exercised its “inherent
authority” to dismiss the case. Our Circuit and the Supreme Court have
recognized a court’s inherent authority to dismiss sua sponte for lack of
prosecution. See Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337
(11th Cir. 2005) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). But
Rosell and Gonzalez cited no authority for a broader inherent power. Instead,
district courts have interpreted dismissals involving Lynn’s Food Stores as Rule
41(a)(2) dismissals. See, e.g., Padilla v. Smith, 53 F.4th 1303, 1308 & n.8 (11th Cir.
2022).
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22-11325 Opinion of the Court 5
Rule 41(a)(1) cannot be used to create appellate jurisdiction
over a partial grant of summary judgment. As “the Rule’s plain
text says: a joint stipulation of voluntary dismissal may be used to
dismiss only an ‘action’ in its entirety.” Perry v. Schumacher Grp. of
Louisiana, 891 F.3d 954, 958 (11th Cir. 2018). We recently
reemphasized our Perry holding, noting that “Rule 41(a) does not
permit plaintiffs to pick and choose, dismissing only particular
claims within an action.” In re Esteva, 60 F.4th 664, 677 (11th Cir.
2023) (quotation omitted). Our precedent has been consistent on
this point for almost two decades. See, e.g., Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004); Campbell v.
Altec Indus., Inc., 605 F.3d 839, 841 n.1 (11th Cir. 2010).
These same conclusions apply to Rule 41(a)(2). To start,
Esteva discussed Rule 41(a) in general, not just Rule 41(a)(1). See
Esteva, 60 F.4th at 677. And the word “action” is used identically in
both Rules 41(a)(1) and 41(a)(2). So we now make explicit what
Esteva at a minimum implied—a Rule 41(a)(2) dismissal can only be
for an entire action, and not an individual claim.2
2 Our Circuit has recognized that Rule 41(a) allows a district court to dismiss
all claims against a particular defendant. See Klay, 376 F.3d at 1106; Esteva, 60
F.4th at 677. But that exception (if it can be called that) is compatible with the
rule’s text because in a multi-defendant lawsuit, an “action” can refer to all the
claims against one party. See 9 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2362 & n.14 (4th ed. 2023 update). No one argues that
the exception applies here, and it obviously could not in this single-defendant
case.
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6 Opinion of the Court 22-11325
Here, because the parties attempted to dismiss one count
rather than the entire action, no part of Rule 41(a) authorized the
dismissal. And because the dismissal was ineffective, Count III is
still pending before the district court. That means we have no final
decision to review. See 28 U.S.C. § 1291. Our “cases make clear that
a voluntary dismissal purporting to dismiss a single claim is invalid,
even if all other claims in the action have already been resolved.”
Esteva, 60 F.4th at 677–78. The lower court “still must address or
otherwise dispose of ” the claim in some manner. Id. at 678.
Does this rule create procedural oddities? Not if parties plan
around it. Litigants who wish to dismiss, settle, or otherwise
resolve less than an entire action can ensure that they receive a final
judgment on the remainder of their claims—which means that we
have appellate jurisdiction—by seeking partial final judgment
under Rule 54(b) from the district court, or by amending their
complaints under Rule 15. Perry, 891 F.3d at 958.
* * *
We DISMISS the appeal for lack of jurisdiction.
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