On occasion, a plaintiff faced with the dismissal of one or more, but not all, of its claims may wish to pursue an immediate appeal without losing the ability to pursue its remaining claims later on. A similar situation arises when a court dismisses a plaintiffs' claims in their entirety, but the defendant has counterclaims that remain pending. Since an order dismissing less than all of the claims of all of the parties is not "final" for the purpose of bringing an appeal as of right in either the Michigan Court of Appeals or the Sixth Circuit,1 it is tempting to consider stipulating to the dismissal of the remaining claims or counterclaims "without prejudice" or with some other language preserving the ability to reinstate those claims in the event of an appellate reversal. It would be wise to resist that temptation.
State Court
The Michigan Court of Appeals has repeatedly cautioned against dismissing claims "without prejudice" in order to try and achieve finality. As the court explained in City of Detroit v Michigan, 262 Mich App 542, 545; 686 NW2d 514 (2004), voluntarily dismissing claims without prejudice creates the possibility of "piecemeal" appeals, which the court rules are designed to prevent:
The parties' stipulation to dismiss the remaining claims without prejudice is not a final order that may be appealed as of...
