           Case: 16-15400   Date Filed: 06/04/2018    Page: 1 of 10


                                                                      [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-15400
                       ________________________

                 D.C. Docket No. 2:13-cv-0036-JES-DNF


PAMELA M. PERRY, M.D.,

                                                             Plaintiff-Appellant,

versus

THE SCHUMACHER GROUP OF LOUISIANA,
a Louisiana Corporation,
THE SCHUMACHER GROUP OF FLORIDA, INC.,
a Florida Corporation,
                                                          Defendants-Appellees,

COLLIER EMERGENCY GROUP, LLC,
a Florida Limited Liability Company,
                                                     Defendant-Cross Defendant-
                                                       Cross Claimant-Appellee,

HEALTH MANAGEMENT ASSOCIATES, INC.,
a Florida Corporation,

                                         Defendant- Cross Claimant -Appellee,

HEALTH MANAGEMENT ASSOCIATES, INC.,
a Michigan Corporation,
                                                            Defendant-Appellee,
               Case: 16-15400        Date Filed: 06/04/2018      Page: 2 of 10


NAPLES HMA, LLC,
a Florida Limited Liability Company,
dba Physicians Regional Healthcare System,
                                                                 Defendant-Cross
                                              Claimant- Cross Defendant-Appellee.
                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                        (June 4, 2018)

Before TJOFLAT and MARTIN, Circuit Judges, and MURPHY, * District Judge.

TJOFLAT, Circuit Judge:

       In this workplace-discrimination, retaliation, and breach-of-contract case,

Dr. Pamela Perry appeals the District Court’s denial of her motion to enter final

judgment, pursuant to Federal Rule of Civil Procedure 54(b), as to seven of her

eight causes of action against three companies (referred to collectively as

“Defendants”) for whom she once worked. The District Court disposed of those

claims on the merits by dismissing some, granting summary judgment in favor of

Defendants as to some, and entering judgment as a matter of law in favor of

Defendants as to others. This left pending and due to be tried only one claim

against one Defendant: a 42 U.S.C. § 1981 discrimination claim against Defendant

Naples HMA, LLC (“NHMA”).


       *
        Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
                                               2
              Case: 16-15400     Date Filed: 06/04/2018    Page: 3 of 10


      In an effort to appeal the disposition of her other causes of action instead of

trying the § 1981 claim in isolation, Dr. Perry entered into a joint stipulation with

NHMA purporting to voluntarily dismiss the § 1981 claim pursuant to Federal

Rule of Civil Procedure 41(a)(1) and then moved the District Court to enter final

judgment on the remaining claims. The District Court denied the motion, finding

that it no longer had jurisdiction over the action after Dr. Perry voluntarily

dismissed her lone remaining claim.

      After careful consideration of the record, and with the benefit of oral

argument, we reverse because the parties’ joint stipulation of dismissal was invalid.

Rule 41(a)(1), according to its plain text, permits voluntary dismissals only of

entire “actions,” not claims. Thus, the invalid joint stipulation did not divest the

District Court of jurisdiction over the case.

                                           I.

      Dr. Perry is an African-American physician who, during the time period

relevant to the case, worked as medical director of Pine Ridge Medical Center in

Naples, Florida. There are five named Defendants in this case, four of which are

still part of the case and parties to this appeal. Two are subsidiaries of The

Schumacher Group (“TSG”), a company that specializes in placing physicians in

hospitals in numerous states and worked with Dr. Perry in her placement at Pine

Ridge. Collier Emergency Group, LLC (“CEG”) is an affiliate of TSG which

                                           3
                   Case: 16-15400        Date Filed: 06/04/2018   Page: 4 of 10


offered Dr. Perry the position. Naples HMA, LLC (“NHMA”) operated the Pine

Ridge facility. A fifth Defendant, Health Management Associates (“HMA”), was

not affiliated with any of the other Defendants, and Dr. Perry stated that she sued

this company in error. Accordingly, she voluntarily dismissed HMA from the

case.

        In January 2013, Dr. Perry brought suit in the Middle District of Florida

against Defendants, alleging that they discriminated and retaliated against her

during her employment with them, in violation of Title VII of the Civil Rights Act

of 1964 and 42 U.S.C. § 1981. After the case began, she asked for and received

leave to amend her complaint four times. The final iteration, the Fourth Amended

Complaint, contained eight claims raised in separate counts, each alleged against a

specific Defendant or Defendants.

        As the case progressed, the District Court gradually disposed of seven of the

eight counts, eliminating some by granting a joint motion to dismiss, others by

granting summary judgment on some claims in favor of some Defendants, and still

others by entering judgment for some Defendants on some claims as a matter of

law. When the dust settled, only one count, § 1981 discrimination,1 against one

Defendant, NHMA, remained.




        1
            In relevant part, 42 U.S.C. § 1981 states:
                                                    4
                 Case: 16-15400     Date Filed: 06/04/2018        Page: 5 of 10


      Preferring not to proceed to trial on that claim alone, Dr. Perry attempted to

first make it possible to appeal the disposal of her other claims. In an attempt to

effectuate immediate appeal, she entered on November 9, 2014 into a “Joint

Stipulation for Voluntary Dismissal Without Prejudice of Count III (42 U.S.C.

§ 1981) of Fourth Amended Complaint” (“the Stipulation”). The Stipulation

stated, “The parties agree that Count III of the Fourth Amended Complaint as the

remaining claim in this action is hereby dismissed without prejudice.” The parties

stated that they were filing the Stipulation pursuant to Federal Rule of Civil

Procedure 41(a)(1)(A), which governs voluntary dismissal of actions without a

court order.2 Thereafter, the District Court observed that “nothing further




      All persons within the jurisdiction of the United States shall have the same right
      in every State and Territory to make and enforce contracts, to sue, be parties, give
      evidence, and to the full and equal benefit of all laws and proceedings for the
      security of persons and property as is enjoyed by white citizens, and shall be
      subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
      kind, and to no other.
      Id. § 1981(a).
      2
          Rule 41(a)(1) states:
      Voluntary Dismissal.
      (1) By the Plaintiff.
      (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any
      applicable federal statute, the plaintiff may dismiss an action without a court order
      by filing:
      (i) a notice of dismissal before the opposing party serves either an answer or a
      motion for summary judgment; or
      (ii) a stipulation of dismissal signed by all parties who have appeared.
                                               5
              Case: 16-15400       Date Filed: 06/04/2018       Page: 6 of 10


remain[ed] to be done” in the case, and accordingly entered judgment in favor of

Defendants and dismissed all claims but the § 1981 discrimination claim with

prejudice.

      On December 12, 2014, Dr. Perry appealed the disposition of her claims.

On January 21, 2015, we ordered the parties to brief whether this Court had

jurisdiction to entertain Dr. Perry’s appeal, in light of the fact that the District

Court’s dismissal of her § 1981 discrimination claim was without prejudice. Five

days later, Dr. Perry moved the District Court to enter final judgment, pursuant to

Federal Rule of Civil Procedure 54(b), as to the claims of which the District Court

disposed on the merits. The District Court denied her motion, finding that, in the

wake of Dr. Perry’s voluntary dismissal of her sole remaining claim, it lacked

jurisdiction to grant the Rule 54(b) motion.

      After receiving the parties’ responses to our jurisdictional question, we held

that we lacked jurisdiction to consider Dr. Perry’s appeal because the District

Court’s order disposing of her counts was “non-final.” Order of Aug. 28, 2015,

Perry v. Schumacher Grp., No. 14-15600 (11th Cir. Aug. 28, 2015). On remand,

Dr. Perry moved the District Court to dismiss her § 1981 discrimination claim with




      (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is
      without prejudice. But if the plaintiff previously dismissed any federal- or state-
      court action based on or including the same claim, a notice of dismissal operates
      as an adjudication on the merits.
                                              6
              Case: 16-15400     Date Filed: 06/04/2018    Page: 7 of 10


prejudice, and simultaneously filed a renewed motion for entry of final judgment.

The District Court denied both motions, holding that it “lack[ed] jurisdiction over

the substance of the case” in light of Dr. Perry’s earlier voluntary dismissal of her

remaining claim. Dr. Perry timely appealed.

                                          II.

      This case turns on resolution of one issue: whether the District Court had

jurisdiction to entertain Dr. Perry’s motion to enter final judgment on her defeated

claims, in the wake of the Stipulation’s entry. We conclude that the District Court

erred in finding that it lacked jurisdiction to consider the motion. The Court had

(and still has) jurisdiction over the case, because the Stipulation was invalid.

      We are guided by the plain text of Federal Rule of Civil Procedure

41(a)(1)(A), which the parties invoked as the legal authority for their attempted

voluntary dismissal of Dr. Perry’s § 1981 claim against NHMA. In relevant part,

Rule 41(a)(1)(A) states,

      (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and
      66 and any applicable federal statute, the plaintiff may dismiss an
      action without a court order by filing:
      (i) a notice of dismissal before the opposing party serves either an
      answer or a motion for summary judgment; or
      (ii) a stipulation of dismissal signed by all parties who have appeared.

It is clear from the text that only an “action” may be dismissed. There is no

mention in the Rule of the option to stipulate dismissal of a portion of a plaintiff’s

lawsuit—e.g., a particular claim—while leaving a different part of the lawsuit
                                           7
              Case: 16-15400     Date Filed: 06/04/2018    Page: 8 of 10


pending before the trial court. See Berthold Types Ltd. v. Adobe Sys. Inc., 242 F.3d

772, 777 (7th Cir. 2001) (“Rule 41(a)(1)(i) does not speak of dismissing one claim

in a suit; it speaks of dismissing ‘an action’—which is to say, the whole case.”); 9

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2362

(3d ed. 2008) (“[I]t has been held that when multiple claims are filed against a

single defendant, Rule 41(a) is applicable only to the voluntary dismissal of all the

claims in an action. A plaintiff who wishes to drop some claims but not others

should do so by amending his complaint pursuant to Rule 15.”).

      The operation of the Federal Rules confirms Rule 41(a)(1)(A)’s plain text.

There are multiple ways to dismiss a single claim without dismissing an entire

action. The easiest and most obvious is to seek and obtain leave to amend the

complaint to eliminate the remaining claim, pursuant to Rule 15. Rule 15 states

that an amendment to the pleadings is permitted upon permission from the other

party or leave of the district court, and that “[t]he court should freely give leave

when justice so requires.” Fed. R. Civ. P. 15(a)(2). In this case, we cannot foresee

how leave to amend could be denied given the circumstances. Dr. Perry wished to

seek immediate appellate review of the District Court’s disposition of seven of her

eight claims, did not wish to proceed to trial on one single claim against one single

Defendant, and conceded that she was willing to drop her § 1981 claim against

NHMA. Had she amended her complaint to remove that claim, the District Court

                                           8
              Case: 16-15400     Date Filed: 06/04/2018     Page: 9 of 10


would have entered final judgment against her and she could have appealed

everything at once. In short, Rule 15 was designed for situations like this.

      Another option would have been to invoke Rule 54(b) before entering into

the Stipulation. This option would have worked had Dr. Perry wished to preserve

her § 1981 claim against NHMA. Rule 54(b) allows a plaintiff to seek and obtain

final judgment on claims already defeated in an action with other claims still

pending, as long as “there is no just reason for delay.” Fed. R. Civ. P. 54(b). As a

general matter, it is likely that a plaintiff would have little trouble making that

showing where, as here, the nucleus of her multi-claim and multi-party suit has

been destroyed and she is now faced with committing the time and expense of

trying only one claim against only one defendant.

      The existence of these procedural vehicles confirms that the purpose

of Rule 41(a) is altogether different from that sought by the parties in this

case. And it confirms what the Rule’s plain text says: a joint stipulation of

voluntary dismissal may be used to dismiss only an “action” in its entirety.

Thus, the Stipulation, which purported to dismiss “Count III of the Fourth

Amended Complaint . . . without prejudice,” was invalid. By stroke of sheer




                                           9
               Case: 16-15400        Date Filed: 06/04/2018        Page: 10 of 10


good fortune for Dr. Perry, 3 the Stipulation did not divest the District Court

of its jurisdiction.

                                                III.

       We accordingly reverse the District Court’s decision.

       SO ORDERED.




       3
           Had Dr. Perry succeeded in her attempted dismissal, she might have fallen into the
dreaded “finality trap.” See generally Terry W. Schackmann & Barry L. Pickens, The Finality
Trap: Accidentally Losing Your Right to Appeal, 58 J. Mo. B. 78 (2002). The finality trap
happens when a district court disposes of some, but not all, claims on the merits, and the plaintiff
then voluntarily dismisses the action without prejudice pursuant to Rule 41(a). A majority of
circuits, including this Circuit, have held that when this occurs, the district court loses its
jurisdiction to entertain a subsequent motion to enter final judgment on the previously disposed
of claims. See id. at 83–84 (collecting cases). In turn, appellate review is permanently
foreclosed because the dismissal of the action without prejudice is not a “final decision,” and
thus is not appealable under 28 U.S.C. § 1291, and there is no court left with jurisdiction to make
the decision “final.” See Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 302 (5th Cir. 1978)
(holding that voluntary dismissal is not a final decision under 28 U.S.C. § 1291, because a
voluntary dismissal without prejudice is “a dismissal without an adjudication on the merits” and
hence does “not amount to a termination of the litigation between the parties”). This Court has
not decided whether our version of the finality rule applies in the particular circumstances
presented by this case, and the parties respectively devote the majority of their briefs arguing for
and against recognition of the finality trap in such circumstances. Because the Stipulation was
invalid, the case never left the District Court’s bosom. We thus have no occasion to reach that
issue here.
                                                10
