Opinion
20-8053
06-16-2021
TRI COUNTY TELEPHONE ASSOCIATION, INC., a Wyoming corporation, Plaintiff Counter Defendant - Appellant, v. BARBARA CAMPBELL, as personal representative for Joe Campbell; JOHN AND JANE DOES 1-10, Defendant Counterclaimants-Appellees.
(D.C. No. 2:17-CV-00089-NDF) (D. Wyoming)
Before TYMKOVICH, Chief Judge, KELLY, and McHUGH, Circuit Judges.
ORDER [*]
CAROLYN B. MCHUGH, CIRCUIT JUDGE.
Plaintiff-appellant Tri County Telephone Association ("TCT") is a telecommunications company headquartered in Cody, Wyoming. In May 2017, TCT sued Joe and Barbara Campbell in the U.S. District Court for the District of Wyoming, alleging misappropriation of trade secrets under the Defend Trade Secrets Act ("DTSA"), violations of the Computer Fraud and Abuse Act ("CFAA"), and various state-law claims. The Campbells denied TCT's claims and asserted several counterclaims. TCT brings this appeal from the district court's (1) June 2019 order ruling on the parties' cross-motions for summary judgment and (2) August 2020 order denying TCT's request to pursue its previously dismissed DTSA claim.
TCT initially named Barbara Campbell, Joe Campbell's wife, as a defendant. In 2019, the district court granted the parties' stipulated dismissal with prejudice of all claims and counterclaims brought by and against Ms. Campbell. Ms. Campbell was thus dismissed as a party from the case. Mr. Campbell died in the fall of 2020, shortly after TCT filed the instant appeal. This court granted Ms. Campbell's unopposed motion to be substituted as appellee in place of Mr. Campbell. Given that Ms. Campbell was initially a party in her individual capacity in the underlying action but was later dismissed, and given that the parties continue to refer to Mr. Campbell as the appellee in their briefing, we refer to Mr. Campbell as the appellee in this order, to avoid confusion.
The district court's August 2020 order also denied TCT's request for a Rule 54(b) certification. However, TCT does not attempt to appeal from that aspect of the order. See Aplt. Br. at 32-33 (challenging the district court's August 2020 order solely on the ground the district court "erred in disallowing TCT to litigate the unadjudicated DTSA claim" (capitalization omitted)).
We conclude we lack jurisdiction over TCT's appeal because Mr. Campbell's counterclaims were voluntarily dismissed without prejudice and the district court denied TCT's motion for Rule 54(b) certification. We therefore dismiss the appeal.
I. BACKGROUND
A. Proceedings in District Court Before TCT's First Appeal
1. Complaint
In May 2017, TCT filed the instant suit alleging three federal claims: (1) misappropriation of trade secrets under the DTSA, 18 U.S.C. § 1836 (Count I); (2) violation of the CFAA, 18 U.S.C. § 1030(a)(2)(C) (Count V); and (3) violation of the CFAA, 18 U.S.C. § 1030(a)(4) (Count VI). TCT also alleged several state-law claims. Mr. Campbell denied TCT's claims and asserted several counterclaims, including for fraud, abuse of process, indemnification, and malicious prosecution.
2. District Court's Dismissal of DTSA Claim Without Prejudice and Denial of Subsequent Motion for Leave to Amend
Mr. Campbell moved to dismiss TCT's federal claims. In July 2017, the district court granted in part and denied in part his motion. It denied his motion to dismiss TCT's two CFAA claims, but it held TCT had not stated a claim under the DTSA because TCT "fail[ed] to explain what trade secrets [Mr. Campbell is] alleged to have misappropriated." App. Vol. I, at 57. The district court therefore dismissed TCT's DTSA claim without prejudice, giving TCT until August 8, 2017, to amend its complaint.
In March 2018-more than six months after the district court's August 2017 deadline had passed-TCT moved to amend its complaint to replead the DTSA claim. In evaluating TCT's motion, the magistrate judge explained the moving party must demonstrate that the typical Federal Rule of Civil Procedure 15(a) standard for amendment of pleadings has been satisfied; further, if the party seeks to amend the complaint after a scheduling order deadline has passed, it must show good cause for seeking the amendment under Rule 16(b)(4). The magistrate judge concluded TCT failed to satisfy either requirement. See App. Vol. II, at 243 ("[TCT] failed to demonstrate either the good cause for seeking to amend the pleadings after the scheduling order deadline under Rule 16(b)(4), or [to] satisfy the Rule 15(a) standard for amending the complaint."); see also id. at 254 ("[TCT's] failure to meet the [August 8, 2017] scheduling order deadline [wa]s not supported by good cause, and [its] Motion to Amend is untimely and would unduly prejudice [Mr. Campbell.]").
TCT did not timely file any objections to the magistrate judge's order. See Fed. R. Civ. P. 72(a) (stating a party may object to a magistrate judge's order within fourteen days); App. Vol. I, at x (district court docket sheet showing no filings made by TCT within fourteen days of magistrate judge's April 17, 2018 order).
3. Cross-Motions for Summary Judgment
The case continued through discovery. Mr. Campbell then moved for summary judgment with respect to TCT's CFAA claims and TCT's state-law claims. In response, TCT filed a cross motion for summary judgment on its CFAA claims and on two of its state-law claims. Neither party sought summary judgment on Mr. Campbell's counterclaims.
In June 2019, the district court ruled on the parties' cross-motions. Regarding TCT's DTSA claim, the district court noted that the claim had been dismissed without prejudice and that TCT's motion for leave to amend had been denied. "Thus," the court stated, "TCT's only remaining federal claims in this suit arise under the [CFAA]." App. Vol. XXII, at 4700. The district court proceeded to grant summary judgment to Mr. Campbell on both of TCT's CFAA claims, dismissing those claims with prejudice. The district court declined to exercise supplemental jurisdiction over TCT's state-based claims, and it accordingly dismissed those claims without prejudice to refiling in state court. The district court's order did not mention Mr. Campbell's counterclaims. The district court ordered the clerk of court to "enter judgment in favor of Mr. Campbell and against TCT." Id. at 4720.
B. TCT's First Appeal to this Court
In July 2019, TCT appealed to this court. See Tri Cnty. Tele. Ass'n, Inc. v. Joe Campbell, et al., No. 19-8043 (10th Cir.). On January 7, 2020, we issued a jurisdictional show cause order. The order noted the district court had (1) dismissed TCT's claims against Ms. Campbell and her counterclaims against TCT with prejudice, (2) dismissed TCT's federal claims against Mr. Campbell, and (3) declined to exercise supplemental jurisdiction over TCT's state-law claims against Mr. Campbell. But we explained that "[t]o the extent Mr. Campbell's counterclaims against [TCT] remain pending, this court lacks jurisdiction over this appeal." No. 19-8043, Jan. 7, 2020 Order at 3.
On January 17, 2020, TCT and Mr. Campbell stipulated to the dismissal without prejudice of Mr. Campbell's counterclaims. TCT attached the stipulation of dismissal to its response to our January 7 show cause order.
On January 22, 2020, we issued a second jurisdictional show cause order, explaining that "[p]arties may not confer appellate jurisdiction upon [this court] by obtaining a voluntary dismissal without prejudice of some claims so that others may be appealed." No. 19-8043, Jan. 22, 2020 Order at 2 (alterations in original) (quoting Heimann v. Snead, 133 F.3d 767, 769 (10th Cir. 1998) (per curiam)). We directed TCT "to file a written response addressing any basis in law for the court to exercise jurisdiction over th[e] appeal" by February 3, 2020, and we advised that "[f]ailure to timely respond to [our] order may result in the dismissal of this appeal without further notice." Id.
TCT filed a response to our second show cause order, but we concluded it was lacking. TCT had responded "not by obtaining a dismissal of the counterclaims 'with prejudice' or seeking certification under Fed.R.Civ.P. 54(b)[, ] but instead [by] arguing," without merit, that the appeal was "proper under 28 U.S.C. § 1291." No. 19-8043, Feb. 13, 2020 Order at 4. We explained that "[b]ecause the district court disposed of [TCT's] federal claims on the merits but did not adjudicate Mr. Campbell's counterclaims, 'the court disposed of "fewer than all the claims" on the merits.'" Id. at 4-5 (quoting Heimann, 133 F.3d at 769). "Accordingly, the district court's orders disposing of [TCT's] federal claims against Mr. Campbell [we]re not yet final and appealable under 28 U.S.C. § 1291." Id. at 5. We therefore dismissed TCT's appeal for lack of jurisdiction. Id.
C. Proceedings in State and District Court After Dismissal of TCT's First Appeal
Following the dismissal of its first appeal, TCT asked the district court for a Rule 54(b) certification. It asserted there was no just reason to delay entry of a final judgment as to its CFAA claims, given that Mr. Campbell's counterclaims "were voluntarily dismissed and were not the subject of discovery or motion practice." App. Vol. XII, at 4776-85. Mr. Campbell took no position on whether Rule 54(b) certification was appropriate.
In March 2020, the district court tentatively denied TCT's motion. It noted that TCT had "an unadjudicated federal claim in this case-its [DTSA] claim, which was dismissed without prejudice," and the parties had not briefed whether Rule 54(b) certification was appropriate in light of this claim. App. Vol. XXII, at 4794. Accordingly, the district court invited either (1) "a pleading which dismisses TCT's [DTSA] claim with prejudice"; or (2) additional briefing on whether TCT's DTSA claim was "separate and distinct" from TCT's CFAA claims, such that a Rule 54(b) certification on the latter claims would be proper. Id. (citing Okla. Tpk. Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001), for the proposition that "a judgment is not final for the purposes of Rule 54(b) unless the claims resolved are distinct and separable from the claims left unresolved"). The district court stated it would "not address the issues associated with [Mr.] Campbell's counterclaims until TCT has addressed its unadjudicated [DTSA] claim." Id. "If and when this federal claim is addressed," the district court stated, "TCT may renew its Motion for Rule 54(b) Certification[.]" Id.
Rather than dismiss its DTSA claim with prejudice or brief the issue of whether Rule 54(b) certification would be appropriate notwithstanding this claim, TCT instead filed a brief requesting that it be able to "prosecute its [DTSA] claim." App. Vol. XXII, at 4797. It argued there was "no justification for disallowing TCT to move forward on th[e] claim." Id. at 4797. Mr. Campbell opposed TCT's request.
As noted, Mr. Campbell did not initially oppose Rule 54(b) certification, instead taking no position. In his response to TCT's request to "move forward" on its DTSA claim, however, he argued that the DTSA claim was not separate and distinct from the CFAA claims, thereby implying Rule 54(b) certification would not be proper. See Okla. Tpk. Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001) ("[A] judgment is not final for the purposes of Rule 54(b) unless the claims resolved are distinct and separable from the claims left unresolved.").
The district court construed TCT's request to "move forward" on its DTSA claim as either (1) an untimely objection to the magistrate judge's decision more than two years earlier denying its motion for leave to amend its complaint to replead its DTSA claim, or (2) a motion for reconsideration of that denial. See App. Vol. XXII, at 4804-06. The district court denied TCT's request in an August 2020 order. It explained that the magistrate judge had correctly concluded the motion was untimely and would have unduly prejudiced Mr. Campbell. The district court stated "[t]he passage of time since then only makes the proposed amendment even more untimely." App. Vol. XXII, at 4805. The district court further held that TCT had failed to demonstrate "reconsideration of its motion to amend is warranted." Id. at 4805-06.
In the same order, the district court denied TCT's motion for Rule 54(b) certification. The district court reasoned that TCT had failed to respond to its question as to whether the DTSA claim rendered certification inappropriate. The district court concluded its August 2020 order by stating it "ha[d] resolved all claims in this case, [so] the case shall remain closed." Id. at 4806.
Meanwhile, in June 2020, Mr. Campbell filed a civil action against TCT in Wyoming state court in which he asserted claims for abuse of process and malicious prosecution, two of the same counterclaims he had asserted against TCT in the district court action. Those claims are still pending in state court. See Aple. Br. at 24 (stating that Mr. Campbell's claims for abuse of process and malicious prosecution, filed in Wyoming state court, "have yet to be adjudicated on their merits in the state court case").
The counterclaims Mr. Campbell did not file as claims in the state court action were for fraud and indemnification.
The state court docket also shows these claims are still pending, see Joe Campbell v. Tri Cnty. Tele. Ass'n, Inc., District Court of Park County, Wyoming, Fifth Judicial District, Civil Action No. 29815, and Mr. Campbell's counsel confirmed this at oral argument.
D. TCT's Instant Appeal
In September 2020, TCT appealed the district court's August 2020 order and the district court's previous order ruling on the parties' cross-motions for summary judgment. Mr. Campbell moved to dismiss the appeal for lack of appellate jurisdiction, which TCT opposed.
II. DISCUSSION
"[T]his court must always satisfy itself of jurisdiction before addressing the merits of a claim." Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1063 (10th Cir. 2002). We are not a court of general jurisdiction; rather, we "have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986).
Under 28 U.S.C. § 1291, we have jurisdiction to review "final decisions" of the district courts. The Supreme Court has defined "a 'final decision' [as] one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Ray Haluch Gravel Co. v. Cent. Pension Fund, 571 U.S. 177, 183 (2014) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). In other words, "[a] final judgment is one that terminates all matters as to all parties and causes of action." Utah v. Norton, 396 F.3d 1281, 1286 (10th Cir. 2005) (internal quotation marks omitted).
The question we face in this appeal is whether the district court's August 2020 order was a "final decision." If not, then we lack jurisdiction to hear TCT's appeal, as TCT proffers no other basis for this court's exercise of jurisdiction. See EEOC v. PJ Utah, LLC, 822 F.3d 536, 542 n.7 (10th Cir. 2016) ("[T]he appellant . . . bears the burden to establish appellate jurisdiction."); see also Rekstad v. First Bank Sys., Inc., 238 F.3d 1259, 1261 (10th Cir. 2001) ("Aside from a few well-settled exceptions, federal appellate courts have jurisdiction solely over appeals from 'final decisions of the district courts of the United States.'" (emphasis omitted) (quoting 28 U.S.C. § 1291)).
Mr. Campbell argues the district court's order is not final because the district court did not adjudicate all of the claims of all parties on their merits and declined to certify any of its decisions as final under Federal Rule of Civil Procedure 54(b). Specifically, Mr. Campbell contends the district court did not adjudicate (1) TCT's DTSA claim against him or (2) his counterclaims against TCT. TCT disagrees, claiming the district court's orders are ripe for appellate consideration notwithstanding the status of its DTSA claim or of Mr. Campbell's counterclaims.
Rule 54(b) provides that "[w]hen an action presents more than one claim for relief . . . the [district] court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay." Fed.R.Civ.P. 54(b). The decision to certify an order or decision as final under Rule 54(b) is "left to the sound judicial discretion of the district court." Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980).
For the reasons discussed in Part II.A, TCT's DTSA claim does not stand as a barrier to finality under this circuit's precedent. It therefore does not prevent our exercise of jurisdiction over TCT's appeal. As discussed in Part II.B, however, Mr. Campbell's counterclaims do preclude finality and consequently prevent our exercise of jurisdiction. We accordingly grant Mr. Campbell's motion to dismiss TCT's appeal.
A. TCT's Defend Trade Secrets Act Claim
Mr. Campbell argues TCT's DTSA claim prevents this court's exercise of appellate jurisdiction because the district court dismissed the claim without prejudice and TCT may still file its claim "in a separate federal court action." Aple. Br. at 19. TCT disagrees, arguing "the fact that the DTSA claim was not litigated [on the merits] in [d]istrict [c]ourt does not deprive this court of appellate jurisdiction; rather, the [d]istrict [c]ourt's denial [in its August 2020 order] of TCT's motion" to pursue its DTSA claim "is an appropriate matter for appeal." Aplt. Reply at 2 (emphasis in original). We agree with TCT. 1. Legal Standards
When a district court dismisses a complaint, even if it does so without prejudice, that "does not necessarily make it non-final under section 1291." Moya v. Schollenbarger, 465 F.3d 444, 448 (10th Cir. 2006). The finality of such an order turns on the particular circumstances of the case. In Moya, we set forth several principles to assist in making the finality determination. Id. at 450-51.
The first principle is that, "if a district court order expressly and unambiguously dismisses a plaintiffs entire action, that order is final and appealable."Id. at 450. The second principle provides:
[W]here a district court dismissal expressly denies the plaintiff leave to amend, or the district court's grounds for dismissal are such that the defect cannot be cured through an amendment to the complaint, that dismissal (even if it is ambiguous or nominally of the complaint) is for practical purposes of the entire action and therefore final.Id. at 450-51 (emphasis in original). Third, if the district court's "dismissal order expressly grants the plaintiff leave to amend," the decision is not final. Id. at 451 (emphasis in original).
Fourth and finally, Moya states that "in all other cases" that do not fall into the above three categories, "we look to the language of the district court's order, the legal basis of the district court's decision, and the circumstances attending dismissal to determine the district court's intent in issuing its order-dismissal of the complaint alone or actual dismissal of plaintiff s entire action." Id. (internal quotation marks omitted). "If the effect of the district court order is that the plaintiff is effectively excluded from federal court, then the district court must have intended to dismiss the entire action and our appellate jurisdiction is proper." Id. (internal quotation marks omitted).
2. Analysis
The district court's August 2020 dismissal of TCT's DTSA claim falls squarely within the second principle laid out in Moya, which provides that a district court's dismissal of a complaint without prejudice is final and appealable where it "expressly denies the plaintiff leave to amend, or the district court's grounds for dismissal are such that the defect cannot be cured through an amendment to the complaint." 465 F.3d at 450-51. When the district court first dismissed TCT's DTSA claim for failure to state a claim, it gave TCT a deadline by which to file an amended complaint reasserting the claim. The parties do not dispute that this first dismissal was "not a final decision" for purposes of § 1291, as it "expressly grant[ed TCT] leave to amend." See Moya, 465 F.3d at 451. TCT missed this deadline. It instead filed a motion for leave to amend several months after the deadline to amend had passed, leading the magistrate judge to deny the motion on the grounds that any amendment was untimely and would unduly prejudice Mr. Campbell. Nearly two years later, TCT again requested that the district court permit it to prosecute its DTSA claim, arguing Mr. Campbell "would not be prejudiced by such an amendment at this time." App. Vol. XXII, at 4798. The district court again disagreed, denying TCT's request in its August 2020 order.
TCT's DTSA claim was the sole claim remaining in TCT's complaint at the time of the district court's August 2020 order. The district court had dismissed TCT's CFAA claims with prejudice at summary judgment, and it had declined to exercise supplemental jurisdiction over TCT's remaining state-law claims.
Thus, although the district court initially granted TCT leave to amend the DTSA claim, and gave TCT a deadline by which to do so, the court thereafter "expressly denie[d]" TCT leave to amend the claim, and made clear that the "grounds for dismissal [we]re such that the defect [could not] be cured through an amendment to the complaint." Moya, 465 F.3d at 450-51. Specifically, the district court held that any amendment to replead the DTSA claim would not be permitted because, among other reasons, it was tardy and would unduly prejudice Mr. Campbell. TCT's DTSA claim therefore does not prevent the district court's August 2020 order from being final. See id.; see also Constien v. United States, 628 F.3d 1207, 1210 (10th Cir. 2010) (holding "dismissal without prejudice for failure of service" was final and appealable "because no amendment of the complaint could cure the defect"); Phillips v. Humble, 587 F.3d 1267, 1271-72 (10th Cir. 2009) (holding dismissal was final and appealable because it rested on plaintiff's failure to provide defendants the requisite prefiling notice; thus, curing the defect would "require[] more than a mere amendment" of the complaint); B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1296-97 n.15 (10th Cir. 2008) (holding dismissal without prejudice for lack of ripeness was final and appealable because the defect could not be cured by an amended pleading); Petty v. Manpower, Inc., 591 F.2d 615, 617 (10th Cir. 1979) (per curiam) (holding district court's order dismissing complaint for lack of prosecution, "a matter going to the merits of appellant's complaint itself rather than a procedural problem which amendment of a complaint might rectify," was final and appealable); Thayer v. Utah, 265 Fed.Appx. 710, 712-13 (10th Cir. 2008) (unpublished) (holding dismissal for failure to pay a filing fee was final and appealable because the defect "was not subject to cure by complaint amendment").
In this order, we cite unpublished opinions for their persuasive value in accordance with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1(A). See Bond v. City of Tahlequah, 981 F.3d 808, 817 n.13 (10th Cir. 2020).
Mr. Campbell contends the DTSA claim precludes finality because TCT may refile the claim in a separate federal court action. See Aple. Br. at 19-20 (arguing that because "further proceedings in federal court on TCT's [DTSA] claim remain a possibility, TCT has not been 'effectively excluded from federal court' on that claim," and the district court's order is therefore non-final (quoting Amazon Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir. 2001)); see also id. at 20 n.3 (asserting "TCT has not argued that the statute of limitations bars the refiling of its [DTSA] claim in a separate action" nor has it "avowed that it will abandon its [DTSA] claim"). Mr. Campbell's argument is unconvincing.
It is true that this court has explained that "[i]f the effect of the district court order is that the plaintiff is effectively excluded from federal court," then "our appellate jurisdiction is proper." Moya, 465 F.3d at 451 (emphasis added) (internal quotation marks omitted); see also Amazon, 273. F.3d at 1275. Although sufficient for finality, we have not held this condition is necessary. Rather, as discussed above, the circumstances here fall under Moya's second principle, which provides, in relevant part, that a district court's dismissal is final where the grounds for dismissal are "such that the defect cannot be cured through an amendment to the complaint." Moya, 465 F.3d at 450-51. When this condition is satisfied, we do not require as an additional condition for finality that the plaintiff be "effectively excluded" from refiling the dismissed claim(s) in a future federal action. See id. (setting forth three finality principles and then stating, "in all other cases" we look to a number of factors, and "[i]f the effect of the district court order is that the plaintiff is effectively excluded from federal court, then . . . our appellate jurisdiction is proper" (emphasis added) (internal quotation marks omitted)).
We have applied this rule, albeit silently, in a number of cases. See, e.g., Constien v. United States, 628 F.3d 1207, 1210 (10th Cir. 2010) (dismissal of complaint without prejudice for improper service of process was final, notwithstanding apparent possibility that plaintiff could refile the complaint after effecting proper service); Phillips v. Humble, 587 F.3d 1267, 1271-72 (10th Cir. 2009) (dismissal of complaint without prejudice for failure to provide proper notice was final, notwithstanding apparent possibility that plaintiff could refile the complaint after providing proper notice); B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1296-97 n.15 (10th Cir. 2008) (dismissal of complaint without prejudice for lack of ripeness was final, notwithstanding apparent possibility that plaintiff could refile the complaint once claims were ripe); Thayer v. Utah, 265 Fed.Appx. 710, 712-13 (10th Cir. 2008) (unpublished) (dismissal of complaint for failure to pay filing fee was final, notwithstanding apparent possibility that plaintiff could refile the complaint after paying the fee).
Mr. Campbell also cites this court's decision in Eastom v. City of Tulsa for the proposition that "if a party can refile a claim that was dismissed without prejudice, the court of appeals lacks jurisdiction over an attempted appeal from an order granting summary judgment on other claims in a multi-claim action." Aple. Br. at 20 (citing Eastom, 783 F.3d 1181, 1183-84 (10th Cir. 2015)). Mr. Campbell's description of our decision in Eastom, however, omits important details. There, the litigant voluntarily dismissed his unadjudicated claim without prejudice; the district court did not involuntarily dismiss the claim. Therefore, Moya's second principle was inapplicable. Eastom, 783 F.3d at 1183. Eastom is therefore distinguishable, with regard to TCT's involuntarily dismissed DTSA claim.
In sum, because the district court dismissed TCT's DTSA claim and ruled that TCT could not amend its complaint to replead it, the claim does not obstruct finality.
B. Mr. Campbell's Counterclaims
Mr. Campbell argues his counterclaims, which he and TCT voluntarily dismissed without prejudice via stipulation, prevent this court from exercising appellate jurisdiction. TCT counters that appellate jurisdiction is proper because Mr. Campbell is litigating his counterclaims in state court and because the district court's August 2020 order stated that "'all claims in this case' were 'resolved' and the 'case shall remain closed.'" Aplt. Reply at 1-3 (quoting App. Vol. XXII, at 4806).
1. Legal Standards
"A final judgment is one that terminates all matters as to all parties and causes of action." Norton, 396 F.3d at 1286 (internal quotation marks omitted). In a multi-claim action, "[p]arties may not confer appellate jurisdiction upon [this court] by obtaining a voluntary dismissal without prejudice of some claims so that others may be appealed." Heimann, 133 F.3d at 769; see also Eastom, 783 F.3d at 1183-85 (dismissing appeal for lack of jurisdiction where district court granted summary judgment against all defendants except as against one defendant, and plaintiff voluntarily dismissed its claims against that remaining defendant without prejudice); cf. Schmier v. McDonald's LLC, 569 F.3d 1240, 1242 (10th Cir. 2009) (noting that a voluntary dismissal with prejudice operates as a final adjudication on the merits).
To permit an appeal in such circumstances would defeat the purpose of Rule 54(b): to rely on the district court's determination as to whether a final judgment should be entered upon disposition of only some claims in a multiclaim action. See Cook v. Rocky Mtn. Bank, 974 F.2d 147, 148 (10th Cir. 1992) (dismissing appeal for lack of jurisdiction, reasoning that "[a] plaintiff cannot be allowed to undermine the requirements of Rule 54(b) by seeking voluntarily dismissal [without prejudice] of her remaining claims and then appealing the claim that was dismissed with prejudice"). Thus, where a party "remains free to file another complaint raising th[e] same claims" it voluntarily dismissed, the district court's orders disposing of the parties' other claims remain non-final. Id. Were the rule otherwise, parties would be able to "subvert the requirements of Rule 54(b)" via artfully timed voluntary dismissals without prejudice. Id.
A "broad consensus" of other circuits agree that "voluntary but non-prejudicial dismissals of remaining claims a[re] generally insufficient to render" an order final and appealable, absent Rule 54(b) certification. Blue v. D.C. Pub. Sch., 764 F.3d 11, 17-18 (D.C. Cir. 2014) (noting "[e]very circuit . . . appears to acknowledge a presumption" against "allow[ing] dismissals without prejudice to finalize trial court proceedings for appellate review," and explaining that "[t]he purpose of Rule 54(b) is to prevent parties from taking over the 'dispatcher' function that the Rule vests in the trial judge to control the circumstances and timing of the entry of final judgment" (collecting cases)); see also Swope v. Columbian Chems. Co., 281 F.3d 185, 193 (5th Cir. 2002) ("[A] party seeking to create finality through dismissal without prejudice of remaining claims must file for Rule 54(b) certification with the trial court. This permits a trial court to control its docket and make an independent determination whether an appeal is warranted under the circumstances of the case." (footnote omitted)).
We applied this rule in Heimann. There, plaintiffs brought a multi-claim action against defendants, and defendants asserted counterclaims. 133 F.3d at 768. The district court dismissed several of plaintiffs' claims on the merits for failure to state a claim, entered summary judgment on other asserted claims of plaintiffs, and left intact for trial one of plaintiffs' claims and all of defendants' counterclaims. Id. The parties then stipulated to the dismissal with prejudice of the plaintiffs' sole remaining claim and to the dismissal without prejudice of all of the defendants' counterclaims. Id. After the district court accepted the parties' stipulation, plaintiffs appealed. Id. This court held it lacked jurisdiction over the appeal, explaining: "Because the district court disposed of Plaintiffs' claims on the merits but dismissed Defendants' counterclaims without prejudice, the court disposed of 'fewer than all the claims' on the merits. Thus Rule 54(b), not § 1291, provides Plaintiffs[] with the means for appeal in this case." Id. at 769. We then gave plaintiffs a fixed amount of time to either "secure a Rule 54(b) certification from the district court, or an order or judgment explicitly adjudicating all remaining claims," warning that we would dismiss the appeal if plaintiffs failed to timely do so. Id. at 770.
We found support for our holding in the Supreme Court's decision in Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445 (1956). Heimann v. Snead, 133 F.3d 767, 769 (10th Cir. 1998) (per curiam)). In that case, the district court disposed of all but one claim on the merits-defendant's counterclaim. Cold Metal Process Co., 351 U.S. at 446. Then, "[u]pon request of both parties, the [d]istrict [c]ourt . . . removed the counterclaim from the trial calendar, without prejudice to either party." Id. When plaintiff appealed, defendant moved to dismiss, arguing the district court had not made the required Rule 54(b) certification. Id. at 449. The district court then amended its judgment to add such a certification, after which plaintiff again appealed. Id. at 450. The Supreme Court held the court of appeals had jurisdiction over the appeal if satisfied the district court did not abuse its discretion in granting the Rule 54(b) certification. Id. at 450-52.
Although "[a]s a general rule, we will not allow parties to manufacture finality by obtaining a voluntary dismissal without prejudice of some claims so that others may be appealed[, t]hat rule does not apply in every circumstance." Spring Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1015 (10th Cir. 2018), as revised (Apr. 13, 2018) (internal quotation marks omitted). Specifically, where the parties have "been effectively excluded from [litigating the claims in] federal court under the present circumstances," the district court's decision is final and appealable. Id. (quotation marks omitted).
We have held this exception is satisfied where, for example, the claims that are dismissed without prejudice are state-law claims that the district court declines to exercise supplemental jurisdiction over, see, e.g., Amazon, 273 F.3d at 1275; the district court dismissed with prejudice a claim that is a predicate to bringing the claims it dismissed without prejudice, see Jackson v. Volvo Trucks N. Am., Inc., 462 F.3d 1234, 1238 (10th Cir. 2006); and the dismissal without prejudice was based on the Eleventh Amendment, see Korgich v. Regents of N.M. Sch. of Mines, 582 F.2d 549, 550 (10th Cir. 1978). The exception may also be satisfied where claims are adjudicated on their merits in state court. See Restatement (Second) of Judgments § 86 (1982) (except in limited circumstances, "[a] valid and final judgment of a state court has the same effects under the rules of res judicata in a subsequent action in a federal court that the judgment has by the law of the state in which the judgment was rendered"). Further, we have indicated a dismissal without prejudice may be final and appealable if the dismissed claim would clearly be time-barred. Bragg v. Reed, 592 F.2d 1136, 1138 (10th Cir. 1979); cf. Eastom, 783 F.3d at 1183-85 (finding lack of finality where plaintiff's claim was not yet time-barred). Finally, the Third Circuit has recognized a dismissal without prejudice may be considered final if the litigant renounces any intention to take further action on the claim. Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 460 F.3d 470, 477-78 (3d Cir. 2006).
Although it appears all of Mr. Campbell's counterclaims are based in state law, the district court did not decline to exercise supplemental jurisdiction over them, instead stating that it declined to exercise supplemental jurisdiction only over TCT's state-law claims.
The "effectively excluded from federal court" exception is not limited to instances where the litigant voluntarily dismisses his claim without prejudice. The authority discussed above includes cases involving involuntary dismissals of claims without prejudice.
2. Application
In TCT's first appeal to this court, we raised the question of whether the district court's order on the parties' cross-motions for summary judgment constituted a final decision under 28 U.S.C. § 1291, based on concerns that Mr. Campbell's counterclaims remained "pending." No. 19-8043, Jan. 7, 2020 Order at 3. After Mr. Campbell voluntarily dismissed these counterclaims without prejudice, we issued a second jurisdictional show-cause order, instructing that "[p]arties may not confer appellate jurisdiction upon [this court] by obtaining a voluntary dismissal without prejudice of some claims so that others may be appealed." No. 19-8043, Jan. 22, 2020 Order at 2 (alterations in original) (quoting Heimann, 133 F.3d at 769). We further noted, "it appear[ed] that Mr. Campbell [could] refile his counterclaims against [TCT]." Id. In other words, these claims were not "effectively excluded from federal court." Spring Creek Expl. & Prod. Co., LLC, 887 F.3d at 1015 (quotation marks omitted). We then dismissed TCT's appeal for lack of jurisdiction.
The circumstances have not meaningfully changed since this court's prior order dismissing the appeal for lack of jurisdiction. TCT has not "obtain[ed] dismissal of the counterclaims 'with prejudice'" nor obtained "certification under Fed.R.Civ.P. 54(b)" directing entry of a final judgment as to TCT's federal claims. See No. 19-8043, Feb. 13, 2020 Order at 4. In fact, the district court denied TCT's motion for a Rule 54(b) certification. See App. Vol. XXII, at 4806 (holding TCT has "not shown it is entitled to a Rule 54(b) certification" because it failed to properly brief the issue). Further, TCT fails to show Mr. Campbell may not refile his counterclaims against TCT in federal court, and therefore the finality exception that applies when claims are "effectively excluded from federal court" is still not satisfied. Accordingly, this court continues to lack jurisdiction over TCT's appeal.
We see no apparent reason why the district court should not promptly grant Rule 54(b) certification upon our dismissal. Indeed, as noted earlier, Mr. Campbell has never taken the position that his counterclaims render Rule 54(b) certification improper. And for the reasons discussed in Part II.A, the DTSA claims do not, as the district court had previously worried, remain outstanding and thereby prevent finality. At this point, however, we continue to lack jurisdiction under our binding precedent.
3. TCT's counterarguments
TCT raises a number of arguments in support of its contention that Mr. Campbell's counterclaims do not preclude finality. None is availing.
a. Filing of counterclaims in state court
First, TCT contends the jurisdictional circumstances have meaningfully changed since its last appeal because Mr. Campbell has since "re-filed his counterclaim for abuse of process and filed a claim for malicious prosecution in" Wyoming state court. Aplt. Resp. to Juris. Mot. at 4-5. TCT argues, without citation, that "[a] party is not permitted to litigate the identical action in both state and federal court," and that by deciding to pursue his claims in state court, Mr. Campbell rendered his "counterclaim[s] in federal court . . . moot." Id. at 5; accord Aplt. Reply at 1 (arguing, without citation, that "this court cannot deny appellate jurisdiction for those claims that [Mr.] Campbell intentionally removed from the federal system"). TCT's argument is inaccurate as a matter of fact and misguided as a matter of law.
As a factual matter, Mr. Campbell is not litigating the "identical action" in Wyoming state court. Indeed, TCT acknowledges as much in its briefing, stating Mr. Campbell "re-filed his counterclaim for abuse of process and . . . for malicious prosecution" in Wyoming state court, thus explicitly leaving out the other counterclaims-for fraud and indemnification-that Mr. Campbell filed in the underlying district court action. Aplt. Resp. to Juris. Mot. at 4-5 (emphasis added); see also Aplt. Reply at 1 (acknowledging Mr. Campbell brought counterclaims for "fraud, abuse of process, indemnification[, ] and malicious prosecution" in district court).
TCT also conceded this factual point at oral argument. See Oral Arg. at 11:07- 45 (agreeing that Mr. Campbell filed fraud and indemnification counterclaims in federal court, and that he did not file those claims in state court).
In any event, as a legal matter, parties may simultaneously litigate the same claims in both state and federal court. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 818-19 (1976) (holding a federal district court may decline to exercise its jurisdiction because of parallel state-court litigation only in "exceptional" circumstances); see also Wyles v. Sussman, 661 Fed.Appx. 548, 552 (10th Cir. 2016) (unpublished) (citing Colorado River for the proposition that "a federal court with jurisdiction isn't barred from hearing a suit concerning the same matter as a suit pending in state court" and vacating and remanding because the district court "erroneously concluded that [plaintiff's] pending state-court action precluded his parallel federal-court action").
Accordingly, we reject TCT's contention that Mr. Campbell's counterclaims do not prevent finality because Mr. Campbell filed some of those counterclaims in state court.
b. Distinguishing Heimann
TCT further contends that this court's decision in Heimann-which we relied on in dismissing TCT's earlier appeal-does not preclude its instant appeal. TCT argues that unlike in Heimann: (1) the parties "did not dismiss the counterclaims to facilitate an appeal," and (2) Mr. Campbell "voluntarily dismissed the state law [counter]claims early in the case and then refiled [them] in state court[.]" Aplt. Reply at 2. TCT's attempts to distinguish Heimann are unpersuasive.
First, Mr. Campbell and TCT did stipulate to dismissal without prejudice of Mr. Campbell's counterclaims to facilitate an appeal. Specifically, the parties entered into their stipulation after and in response to this court's jurisdictional show-cause order. In response to their stipulation, we explained, quoting Heimann, that "[p]arties may not confer appellate jurisdiction upon [this court] by obtaining a voluntary dismissal without prejudice of some claims so that others may be appealed." No. 19-8043, Jan. 22, 2020 Order at 2 (quoting Heimann, 133 F.3d at 769). In other words, TCT makes the same argument for finality that this court has already rejected in its first appeal-namely, that Mr. Campbell's voluntarily dismissal of his counterclaims without prejudice renders the district court's order final and appealable.
We do not rely on the "law of the case" doctrine in rejecting TCT's argument. Rather, as discussed above, we rely on our binding precedent in Heimann, which in turn relies on the Supreme Court's decision in Cold Metal Process Co. In noting that we have already rejected TCT's argument that this case is distinguishable from Heimann because the parties "did not dismiss the counterclaims to facilitate an appeal," we simply observe that TCT's argument is no more persuasive now than when we previously rejected it.
Second, TCT points to Mr. Campbell's decision to refile his counterclaims in state court, but it fails to explain why this decision is legally significant with respect to our finality determination under § 1291. As discussed, filing claims in state court does not preclude their simultaneous litigation in federal court (except in extraordinary circumstances that have not been argued here).
The circumstances of Heimann are thus materially indistinguishable from those presented here, and, as in Heimann, we must dismiss the appeal for lack of jurisdiction.
c. District court's designation of its order as final
Lastly, TCT argues the district court's August 2020 order is final because the court stated in its order that it "ha[d] resolved all claims in this case, [and] the case shall remain closed." Aplt. Resp. to Juris. Mot. at 3. This argument also fails.
The district court's designation of an order is not dispositive as to finality. Rather, in the absence of a Rule 54(b) certification from the district court, "any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties[, ] does not end the action as to any of the claims or parties." Fed.R.Civ.P. 54(b) (emphasis added). Indeed, in Heimann itself, we held the district court's order was not final under § 1291 due to defendants' counterclaims, notwithstanding the district court's "conclu[sion] that 'the matter is now final and immediately appealable.'" 133 F.3d at 768-70; see also Moya, 465 F.3d at 450 n.7 ("We reemphasize that bare terminology in a district court order is not determinative [as to finality]."); Ashley Creek Phosphate Co. v. Chevron USA, Inc., 315 F.3d 1245, 1263 (10th Cir. 2003) (citing Fed.R.Civ.P. 54(b) and explaining that the district court's order "directing the clerk to 'close the case' was not a final order" because defendants' "state law counterclaims against [one plaintiff] were still pending, as was [the other plaintiff's] derivative claim").
In sum, the district court's designation of its order as final does not alter our conclusion that, for purposes of § 1291, it is not in fact final.
For these reasons, we hold that Mr. Campbell's counterclaims prevent the district court's order from being final and appealable under § 1291. Specifically, these claims were voluntarily dismissed without prejudice, they may still be refiled against TCT, and TCT has not obtained a Rule 54(b) certification from the district court directing entry of a final judgment as to TCT's federal claims.
III. CONCLUSION
We grant Mr. Campbell's motion to dismiss TCT's appeal for lack of jurisdiction. TCT's DTSA claim does not stand as a barrier to finality; however, we lack jurisdiction over TCT's appeal due to Mr. Campbell's counterclaims. TCT may attempt to cure the jurisdictional defect by obtaining a stipulated dismissal with prejudice of Mr. Campbell's counterclaims or by obtaining a Rule 54(b) certification directing entry of a final judgment as to its federal claims. Alternatively, if Mr. Campbell's counterclaims become effectively excluded from federal court-for example, if all of the counterclaims are either time-barred or are adjudicated on their merits in state court (and no exception to res judicata applies), or if the district court declines to exercise supplemental jurisdiction over them-then the counterclaims would no longer obstruct finality. But at present, the district court's orders remain unripe for appellate consideration.
We address TCT's motion for leave to file a portion of its appendix under seal in a separate order.
[*] This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.