                                    PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT



             Nos. 12-1446 and 12-1903


      KAREN CAMESI; ERIN O'CONNELL;
        LORI SHAFFER; DINAH BAKER,
   on behalf of themselves and all other employees
                  similarly situated,

                        Appellants in Case No. 12-1446

                         v.

UNIVERSITY OF PITTSBURGH MEDICAL CENTER;
UPMC; UPMC HEALTH SYSTEM; UPMC BEDFORD
MEMORIAL HOSPITAL; UPMC BRADDOCK; UPMC
   MCKEESPORT; UPMC NORTHWEST; UPMC
   PASSAVANT; UPMC PRESBYTERIAN; UPMC
PRESBYTERIAN SHADYSIDE; UPMC SHADYSIDE;
   UPMC SOUTHSIDE; UPMC ST. MARGARET;
 MAGEE WOMEN’S HOSPITAL OF UPMC; MERCY
   HOSPITAL OF PITTSBURGH; MONTEFIORE
HOSPITAL; MONTEFIORE UNIVERSITY HOSPITAL;
WESTERN PSYCHIATRIC INSTITUTE AND CLINIC;
 CHILDREN'S HOSPITAL OF PITTSBURGH OF THE
   UPMC HEALTH SYSTEM; UPMC LEE; UPMC
  HORIZON; UPMC HOLDING COMPANY, INC.;
   UPMC HEALTH NETWORK, INC.; JEFFREY A.
    RAMOFF; GREGORY PEASLEE; UPMC 401A
    RETIREMENT SAVINGS PLAN; UPMC 403B
   RETIREMENT SAVINGS PLAN; UPMC BASIC
             RETIREMENT PLAN



    ANDREW KUZNYETSOV; CHARLES BOAL;
          MARTHANN HEILMAN,

                    Appellants in Case No. 12-1903

                    v.

  WEST PENN ALLEGHENY HEALTH SYSTEM, INC;
   THE WESTERN PENNSYLVANIA HEALTHCARE
   SYSTEM, INC.; ALLE-KISKI MEDICAL CENTER;
        ALLEGHENY GENERAL HOSPITAL;
   ALLEGHENY GENERAL HOSPITAL-SUBURBAN
 CAMPUS; CANONSBURG GENERAL HOSPITAL; THE
      WESTERN PENNSYLVANIA HOSPITAL;
      CHRISTOPHER T. OLIVIA; JOHN LASKY;
RETIREMENT PLAN FOR EMPLOYEES OF WEST PENN
    ALLEGHENY HEALTH SYSTEM; ALLE-KISKI
   MEDICAL ASSOCIATES; ALLE-KISKI WOMEN'S
    HEALTH; ALLEGHENY MEDICAL PRACTICE
    NETWORK; ALLEGHENY SINGER RESEARCH
  INSTITUTE; ALLEGHENY SPECIALTY PRACTICE
    NETWORK; ALLEGHENY VALLEY INTERNAL
 MEDICINE; ASSOCIATED SURGEONS OF WESTERN
   PENNSYLVANIA; ASSOCIATED SURGEONS OF
WESTERN PENNSYLVANIA P.C.; BARRY SEGAL, MD;




                     2
   BELLEVUE MEDICAL ASSOCIATES; BELLEVUE
PEDIATRIC ASSOCIATES; BURN CARE ASSOCIATES,
   LTD.; BURRELL INTERNAL MEDICINE; CABOT
  MEDICAL CENTER; CANONSBURG COMMUNITY
    HEALTHCARE CENTER; CENTER FOR FAMILY
 HEALTH CARE; CENTURY MEDICAL ASSOCIATES;
   CENTURY III MEDICAL ASSOCIATES; CITIZENS
SCHOOL OF NURSING; CORKERY, HEISE, DAINESI &
    TRAPANOTTO; CRAFTON MEDICAL CENTER;
   CREIGHTON MEDICAL CENTER; DR. FRANCIS J.
 CAVANAUGH, MD; DR. MEHERNOSH KHAN; EAST
   END MEDICAL ASSOCIATES; EAST SUBURBAN
   FAMILY PRACTICE; EAST SUBURBAN OB/GYN;
    FAMILY NURSE MIDWIVES; FERLAN GROUP;
    FRIENDSHIP MEDICAL ASSOCIATES; FORBES
  HOSPICE; FUGE FAMILY PRACTICE; GREEN TREE
     MEDICAL CENTER ASSOCIATES; HAMPTON
 MEDICAL CENTER; HEALTH CENTER ASSOCIATES;
HUSSAINI MEDICAL ASSOCIATES; IRWIN MEDICAL
  CENTER; IRWIN PRIMARY CARE ASSCOCIATES;
    MAMATASTRAGOOR KHAN PRIMARY CARE
     ASSOCIATES; MCDONALD PRIMARY CARE;
MEADOWLANDS PRIMARY CARE; MEDICAL CENTER
    CLINIC, P.C.; META-HILBERG HEMATOLOGY
          ONCOLOGY ASSOCIATES, INC.;
   MONROEVILLE MEDICAL ASSOCIATES; M.H.V.
  MURTHY, MD; NATRONA HEIGHTS OB/GYN, INC.;
 NORTH VERSAILLES MEDICAL ASSOCIATES; PAUL
REILLY, MD; PEDIATRIC & NEONATAL ASSOCIATES;
 PEDIATRIC & NEONATAL ASSOCIATES, INC.; PENN
   HILLS MEDICAL ASSOCIATES; PENNSYLVANIA
     COMPREHENSIVE CARE ASSOCIATES; PINE
 HOLLOW MEDICAL ASSOCIATES; PINE RICHLAND




                     3
   MEDICAL ASSOCIATES; PITTSBURGH CARDIO
       THORACIC ASSOCIATES; PITTSBURGH
 CARDIOTHORACIC ACCOCIATES; PLUM MEDICAL
     ASSOCIATES; PRIMARY CARE NORTHSIDE;
  PRIMAMRY CARE SOUTH; RIAD SARADAR, MD;
ROBERT BARAFF, MD; FRANK E. SESSOMSM.D., INC;
 STERLING MEDICAL ASSOCIATES; THREE RIVERS
      IMAGING ASSOCIATES, P.C.; TRI COUNTY
  CARDIOLOGY; TRI COUNTY CARDIOLOGY, INC.;
    UNITED PHYSICIANS; VASCULAR CENTER OF
   WESTERN PENNSYLVANIA, INC.; WATERDAM
 MEDICAL ASSOCIATES; WEST PENN ALLEGHENY
  EYE ASSOCIATES, P.C.; WEST PENN ALLEGHENY
    FOUNDATION, LLC; WEST PENN ALLEGHENY
          HEALTH SYSTEM, INC. (CORP);
  WEST PENN ALLEGHENY HEALTH SYSTEM, INC.
   (NON PROFIT CORP); WEST PENN ALLEGHENY
    HEALTH SYSTEM PRIMARY CARE NETWORK;
 WEST PENN ALLEGHENY ONCOLOGY NETWORK;
 WEST PENN ALLEGHENY PHYSICIANS, LLC; WEST
   PENN ALLEGHENY SENIOR CARE; WEST PENN
     BREAST SURGERY PRACTICE; WEST PENN
COMPREHENSIVE HEALTH CARE, P.C.; WEST PENN
       CORPORATE MEDICAL SERVICES, INC.;
    WEST PENN FAMILY PRACTICE; WEST PENN
  INTERNAL MEDICINE ASSOCIATES; WEST PENN
     PHYSICIANS' ORGANIZATION; WEST PENN
   PHYSICIAN PRACTICE NETWORK; WEST PENN
  PLASTIC & RECONSTRUCTIVE SURGERY; WEST
 PENN PLASTIC SURGERY; WEST PENN SURGICAL
  SUPPLY CO.; WEST PENN SPECIALTY MSO, INC.;




                      4
  WEST VIEW FAMILY HEALTH ASSOCIATES; THE
  WESTERN PENNSYLVANIA BURN FOUNDATION;
  WESTERN PENNSYLVANIA CANCER INSTITUTE;
 THE WESTERN PENNSYLVANIA CARDIOVASCULAR
INSTITUTE; WESTERN PENNSYLVANIA DIAGNOSTIC
  CLINIC; WESTERN PENNSYLVANIA HEART PLAN
  INC.; THE WESTERN PENNSYLVANIA HOSPITAL
   FOUNDATION;THE WESTERN PENNSYLVANIA
      HOSPITAL-FORBES REGIONAL CAMPUS;
 THE WESTERN PENNSYLVANIA HOSPITAL SCHOOL
   OF NURSING; THE WESTERN PENNSYLVANIA
      HOSPITAL SKILLED NURSING FACILITY;
  WESTERN PENNSYLVANIA OB/GYN ASSOCIATES;
     THE WESTERN PENNSYLVANIA RESEARCH
    INSTITUTE; WEXFORD MEDICAL PRACTICE;
             WEXFORD WEIGHT LOSS



       Appeal from the United States District Court
          for the Western District of Pennsylvania
 (District Court Nos. 3-09-cv-00085 and 2-10-cv-00948)
 District Judges: Honorable Cathy Bisson and Honorable
                   Donetta W. Ambrose


                Argued March 6, 2013


 Before: RENDELL, AMBRO and VANASKIE, Circuit
                    Judges

          (Opinion Filed: September 4, 2013)




                          5
Jared K. Cook, Esquire
Justin M. Cordello, Esquire
Michael J. Lingle, Esquire
Patrick Solomon, Esquire
J. Nelson Thomas, Esquire (Argued)
Thomas & Solomon
693 East Avenue
New York, NY 14607

Counsel for appellants in case 12-1446 and case 12-1903



Wendy W. Feinstein, Esquire
Mariah L. Klinefelter, Esquire
John J. Myers, Esquire (Argued)
Andrew T. Quesnelle, Esquire
Mark A. Willard, Esquire
Eckert, Seamans, Cherin & Mellot
600 Grant Street
44th Floor, U. S. Steel Tower
Pittsburgh, PA 15219

Counsel for appellees in case 12-1446




                             6
Alexandra Bak-Boychuk, Esquire
David S. Fryman, Esquire (Argued)
William K. Kennedy, II, Esquire
John B. Langel, Esquire
Ballard Spahr
1735 Market Street
51st Floor
Philadelphia, PA 19103

Robert B. Cottington, Esquire
Cohen & Grigsby
625 Liberty Avenue
Pittsburgh, PA 15222

Counsel for appellees in case 12-1903



                        OPINION


RENDELL, Circuit Judge:

        In this consolidated appeal we consider whether named
plaintiffs may appeal a district court order denying final
certification of a collective action under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. (2007). The
named plaintiffs voluntarily dismissed their individual claims
with prejudice but seek to pursue an appeal on behalf of
others who opted into the litigation before the District Court.
We conclude that the named plaintiffs lack final orders
appealable under 28 U.S.C. § 1291. Thus, we will dismiss
these appeals for lack of jurisdiction.




                                7
                               I.

       “The FLSA establishes federal minimum-wage,
maximum-hour, and overtime guarantees that cannot be
modified by contract.” Genesis Healthcare Corp. v. Symczyk,
133 S. Ct. 1523, 1527 (2013). Under Section 16(b) of the
FLSA, 29 U.S.C. § 216(b), an employee may bring an action
against his employer individually, on his own behalf, and
collectively, on behalf of other “similarly situated”
employees. Id. In order to become parties to a collective
action under Section 16(b), employees must affirmatively
opt-in by filing written consents with the court. 29 U.S.C. §
216(b). This feature distinguishes the collective-action
mechanism under Section 16(b) from the class-action
mechanism under Federal Rule of Civil Procedure 23, where,
once the class is certified, those not wishing to be included in
the class must affirmatively opt-out.

        Courts in our Circuit follow a two-step process for
deciding whether an action may properly proceed as a
collective action under the FLSA. Zavala v. Wal-Mart Stores
Inc., 691 F.3d 527, 535 (3d Cir. 2012). Applying a “fairly
lenient standard” at the first step, the court makes a
preliminary determination as to whether the named plaintiffs
have made a “modest factual showing” that the employees
identified in their complaint are “similarly situated.” Id. at
536 & n.4. If the plaintiffs have satisfied their burden, the
court will “conditionally certify” the collective action for the
purpose of facilitating notice to potential opt-in plaintiffs and
conducting pre-trial discovery. Id. at 536. At the second stage,
with the benefit of discovery, “a court following this
approach then makes a conclusive determination as to
whether each plaintiff who has opted in to the collective




                               8
action is in fact similarly situated to the named plaintiff.”
Genesis Healthcare Corp. v. Symczyk, 656 F.3d 189, 193 (3d
Cir. 2011), rev’d on other grounds, Symczyk, 133 S. Ct. at
1526. This step may be triggered by the plaintiffs’ motion for
“final certification,” by the defendants’ motion for
“decertification,” or, commonly, by both. If the plaintiffs
succeed in carrying their heavier burden at this stage, the case
may proceed on the merits as a collective action. Id.

        It is under this framework that Appellants brought
their actions.

                              II.

        The first consolidated action was commenced on April
2, 2009, by Karen Camesi, Erin O’Connell, Dinah Baker, and
Lori Shaffer (the “Camesi Named Plaintiffs”) against UPMC
and multiple related entities (collectively, “UPMC”) in the
United States District Court for the Western District of
Pennsylvania on behalf of themselves and “similarly situated”
individuals. (Camesi J.A. at A-40). They alleged that their
employer, UPMC, violated the FLSA by failing to ensure that
they were paid for time worked during meal breaks. Upon
filing their complaint, the Camesi Named Plaintiffs moved for
expedited conditional certification. (Id.) The motion was
granted in May 2009, notice was directed to potential
collective-action members, and 3,115 individuals opted into
the lawsuit. (Camesi Br. Appellee at 5). After preliminary
discovery, UPMC filed a motion to decertify the collective
action and the Camesi Named Plaintiffs filed a motion for
final certification. (Camesi J.A. at A-114-16). The District
Court granted UPMC’s motion and denied the Camesi Named
Plaintiffs’ motion on December 20, 2011, and dismissed the




                               9
claims of the opt-in plaintiffs without prejudice. (Id. at A-1).
The Camesi Named Plaintiffs did not ask the District Court to
certify its interlocutory December 20, 2011 order for appeal,
but, instead, moved under Federal Rule of Civil Procedure
41(a) for “voluntary dismissal of their claims with prejudice
in order to secure a final judgment for purposes of appeal.”
(Id. at A-1565). The District Court granted the unopposed
motion on January 30, 2012, stating that “Plaintiffs’
remaining claim are hereby dismissed with prejudice in order
to allow Plaintiffs to seek appellate review.” (Id. at A-96).

       In the other consolidated action, Andrew Kuznyetsov,
Charles Boal, and Marthann Heilman (the “Kuznyetsov
Named Plaintiffs,” or collectively with Camesi Named
Plaintiffs, “Appellants”), filed individual and collective
actions in the United States District Court for the Western
District of Pennsylvania against their employer, West Penn
Allegheny Health System, Inc. and other related defendants
(collectively, “West Penn,” or collectively with UPMC,
“Appellees”), on April 1, 2009. Their complaint similarly
alleged that they were not compensated for work performed
during meal breaks in violation of the FLSA. (Kuznyetsov Br.
Appellants at 3; Br. West Penn at 3). The District Court
conditionally certified the collective action and facilitated
notice to potential collective-action members, 820 of whom
opted into the lawsuit. (Br. West Penn at 4). On December 20,
2011, the District Court decertified the class on West Penn’s
motion and denied the Kuznyetsov Named Plaintiffs’ motion
for final certification. (Kuznyetsov App. at A15). Then, on
February 29, 2012, the District Court granted the Kuznyetsov
Named Plaintiffs’ motion under Rule 41(a) for “voluntary
dismissal of their claims with prejudice in order to secure a
final judgment for purposes of appeal,” and also dismissed




                              10
the claims of the opt-in plaintiffs without prejudice. (Pls.’
Mot. for Vol. Dismissal with Prejudice for Purposes of
Appeal at 1, No. 10-0948, Doc. No. 145; Kuznyetsov App. at
A17).

       Both sets of named plaintiffs now appeal. Because
both cases raise the same issue, we have consolidated them
before us.

                              III.

       We begin by considering whether Appellants’
voluntary dismissal of their claims with prejudice under Rule
41(a) left them with a final order appealable under 28 U.S.C.
§ 1291. This question of first impression requires us to
consider the scope of two strands of Third Circuit authority:
Sullivan v. Pacific Indemnity Co., 566 F.2d 444 (3d Cir.
1977), in which we held that a plaintiff may not obtain
appellate review after incurring a dismissal for failure to
prosecute for the purpose of seeking to appeal an
interlocutory class-certification order, and Fassett v. Delta
Kappa Epsilon, 807 F.2d 1150 (3d Cir. 1986), in which we
permitted plaintiffs to voluntarily dismiss a portion of their
case in order to appeal an order of the district court
terminating the remainder of their case. In considering the
significance of these cases, we bear in mind that, while an
appeal from a final judgment necessarily, and permissibly,
appeals prior orders of the district court, Appellants here seek
review of only the orders decertifying their collective actions,
and do not complain of the “final” orders that dismissed their
cases.




                              11
       We have jurisdiction under 28 U.S.C. § 1291 to review
“final decisions” of the district courts. Giles v. Campbell, 698
F.3d 153, 157 (3d Cir. 2012). “‘A ‘final decision’ generally is
one . . . [that] ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.’” Harris
v. Kellogg Brown & Root Servs., 618 F.3d 398, 400 (3d Cir.
2010) (quoting Catlin v. United States, 324 U.S. 229, 233
(1945)). The finality rule guards against piecemeal litigation.
Giles, 698 F.3d at 157.

       Generally, a dismissal with prejudice constitutes an
appealable final order under § 1291. See, e.g., In re Merck &
Co. Sec., Derivative & ERISA Litig., 493 F.3d 393, 399 (3d
Cir. 2007). Furthermore, “[u]nder the ‘merger rule,’ prior
interlocutory orders [such as class-certification decisions]
merge with the final judgment in a case, and the interlocutory
orders (to the extent that they affect the final judgment) may
be reviewed on appeal from the final order.” In re
Westinghouse Sec. Litig., 90 F.3d 696, 706 (3d Cir. 1996).
Even so, Appellees urge that Appellants’ voluntary dismissals
of their claims constitute impermissible attempts to
manufacture finality under Sullivan. We agree.

        In Sullivan, the plaintiffs brought a class action under
Rule 23. 566 F.2d at 444-45. On the day Sullivan was
scheduled for trial, the district court denied the plaintiffs’
motion to certify a class action. Id. at 445. The plaintiffs, in
turn, refused to present any evidence at trial and the district
court dismissed their claims under Rule 41(b) for failure to
prosecute. Id. The plaintiffs then sought review of the denial
of class certification by our Court, arguing that the dismissal
for failure to prosecute was a final order appealable pursuant
to § 1291. Id.




                              12
        We began our opinion by noting that a “class
certification decision, per se, is not an appealable final order
under 28 U.S.C. § 1291,” but rather is an interlocutory order.
Id. We characterized the dismissal for failure to prosecute “as
an attempt to avoid this [C]ourt’s firm position against
interlocutory appeals of class certification determinations.”
Id. Such a “strategy,” this Court reasoned, was impermissible
because “‘[i]f a litigant could refuse to proceed whenever a
trial judge ruled against him, wait for the court to enter a
dismissal for failure to prosecute, and then obtain review of
the judge’s interlocutory decision, the policy against
piecemeal litigation and review would be severely
weakened.’” Id. at 445 (quoting Marshall v. Sielaff, 492 F.2d
917, 919 (3d Cir. 1974)). Allowing such a practice would risk
“inundati[ng] . . . appellate dockets with requests for review
of interlocutory orders and . . . [could] undermine the ability
of trial judges to achieve the orderly and expeditious
disposition of cases.’” Id. at 445-46. Therefore, we dismissed
the appeal for lack of an appealable order.1

1
  Additionally, Appellees emphasize that the United States
Courts of Appeals for the Sixth and Ninth Circuits have also
concluded that plaintiffs may not appeal a dismissal for lack
of prosecution where the plaintiffs caused that dismissal in
order to appeal. See Huey v. Teledyne, Inc., 608 F.2d 1234,
1236 (9th Cir. 1979) (concluding that reviewing the denial of
class-action certification after plaintiff’s action was dismissed
for failure to prosecute would violate the spirit of Coopers &
Lybrand v. Livesay, 437 U.S. 463 (1978), in which the Court
held that a decertification order was not an appealable final
order); Hughley v. Eaton Corp., 572 F.2d 556, 557 (6th Cir.
1978) (holding that dismissal for failure to prosecute rendered




                               13
       We believe that Sullivan is so similar to the cases
before us as to be controlling. In the past, we have “looked to
Rule 23 decisions by analogy in determining appealability” of
orders in FLSA collective actions. Lusardi v. Lechner, 855
F.2d 1062, 1068 n.8 (3d Cir. 1988). We find it appropriate to
do so here because an order decertifying a Section 16(b)
collective action is interlocutory, just like a certification
decision is in the Rule 23 context. Id. at 1067-68.

        Like the plaintiffs in Sullivan, Appellants have
attempted to short-circuit the procedure for appealing an
interlocutory district court order that is separate from, and
unrelated to, the merits of their case. Appellants could have
obtained appellate review of the decertification order by
proceeding to final judgment on the merits of their individual
claims. Or, Appellants could have asked the District Courts to
certify their interlocutory orders for appeal. But Appellants
instead sought to convert an interlocutory order into a final
appealable order by obtaining dismissal under Rule 41. If we
were to allow such a procedural sleight-of-hand to bring
about finality here, there is nothing to prevent litigants from
employing such a tactic to obtain review of discovery orders,
evidentiary rulings, or any of the myriad decisions a district
court makes before it reaches the merits of an action. This
would greatly undermine the policy against piecemeal
litigation embodied by § 1291.

      Appellants counter that Sullivan is inapposite and we
should instead follow the approach we followed in Fassett,
807 F.2d at 1154, and Trevino-Barton v. Pittsburgh National


moot any prior ruling of the district court). We read these
cases as consistent with Sullivan.




                              14
Bank, 919 F.2d 874, 878 (3d Cir. 1990). But Fassett and
Trevino-Barton are clearly distinguishable. In Fassett, the
question of finality arose after the plaintiff elected to dismiss
her claim against the sole defendant who remained following
the district court’s entry of summary judgment in favor of all
other original defendants. 807 F.2d at 1154-55. Although the
dismissal of the remaining defendant was without prejudice,
we concluded that the order was nevertheless final and
appealable because the statute of limitations had run on the
claims against that defendant. Id. Similarly, in Trevino-
Barton, 919 F.2d at 878, we allowed an appeal where a
plaintiff agreed to abandon the single count of her complaint
that she had voluntarily dismissed without prejudice
following the district court’s entry of summary judgment in
favor of the defendants on all of the remaining counts of her
complaint. Id.; see also O’Boyle v. Jiffy Lube Int’l, Inc., 866
F.2d 88 (3d Cir. 1989) (holding same).2 In both of these


2
  Appellants also invoke a slew of out-of-circuit precedent
following a similar approach. Not only are these cases not
binding in the Third Circuit, they are also clearly
distinguishable. Compare Helm Fin. Corp. v. MNVA R.R.,
212 F.3d 1076, 1079 (8th Cir. 2000) (allowing appeal
following voluntary dismissal of claims where the district
court’s earlier order denying plaintiff summary judgment on
those claims effectively terminated the claims), and St. Paul
Fire & Marine Ins. Co. v. United States, 959 F.2d 960, 961
(Fed. Cir. 1992) (permitting an appeal where plaintiff
dismissed her complaint following the district court’s denial
of leave to amend by adding additional claims), with John’s
Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101,
108 (1st Cir. 1998) (refusing to permit an appeal of




                               15
cases, all of the claims had effectively been barred either by
the court or as a matter of law, and, importantly, it was the
court’s grant of summary judgment against the plaintiff as to
the merits of most of the claims that was the subject of the
appeal. Here, the subject of the appeal is not the dismissal,
but rather, the decertification order.

       Appellants read Fassett and Trevino-Barton as
establishing a rule that “a voluntary dismissal under Rule
41(a), sought to obtain appellate review, is a final appealable
order.” (Appellants’ Resp. to Appellees’ Mot. to Dismiss the
Appeal at 5). But neither case holds so broadly. Instead, we
understand Fassett and Trevino-Barton to stand for the
proposition that when a plaintiff has suffered an adverse
judgment on the merits as to claims or defendants A, B, and
C, which would otherwise be final and appealable were it not
for remaining claim or defendant D, he or she may elect to
forgo D in order to obtain review of the order respecting A,
B, and C. Neither case permits a plaintiff who has suffered an
adverse decision collateral to the merits of A, B, C, and D to
throw out his or her entire action to obtain review of that
interlocutory ruling. That, of course, is exactly what happened
here, where there was clearly no judgment on the merits. But
even Fassett cautioned against this, stating that this Court
“will not permit an indirect review of interlocutory rulings
that may not be subject to direct review.” 807 F.2d at 1155.
Thus, Appellants’ reliance on Fassett and Trevino-Barton is
misplaced.




interlocutory orders following dismissal for failure to
prosecute).




                              16
        In sum, the District Courts’ orders decertifying the
collective actions were interlocutory. Appellants were not
entitled to appeal these orders directly under § 1291. Nor can
Appellants avoid the strong presumption against interlocutory
review of such orders by voluntarily dismissing all of their
claims under Rule 41. Thus, these appeals must be dismissed
for lack of appellate jurisdiction.

                              IV.

        Appellees urge an alternative bar to our exercise of
jurisdiction over the review sought by Appellants, namely
that, even if we were to find finality, Appellants’ voluntary
relinquishment of their individual claims has rendered the
cases moot.

       Article III requires “that ‘an actual controversy must
be extant at all stages of review, not merely at the time the
complaint is filed.’” Symczyk, 133 S. Ct. at 1528 (quoting
Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997)). An action is rendered moot when “an intervening
circumstance deprives the plaintiff of a ‘personal stake in the
outcome of the lawsuit,’ at any point during the litigation.” Id.
(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78
(1990)).

        We understand Appellants’ argument to be that they
continue to maintain a personal stake in the outcome of the
litigation because, as a result of (and notwithstanding) their
dismissal of their claims with prejudice, “their individual
claims are now tied to the outcome of this appeal.”
(Kuznyetsov Resp. to West Penn Mot. 12-14). Appellants
apparently believe that reversal of the District Courts’




                               17
decertification orders on appeal would resurrect their
individual claims once again at the district court level.
However, this reflects a fundamental misunderstanding of the
nature of a dismissal with prejudice. The claims that
Appellants dismissed with prejudice are gone forever—they
are not reviewable by this Court and may not be recaptured at
the district court level. See Fairley v. Andrews, 578 F.3d 518,
522 (7th Cir. 2009) (holding that where a litigant voluntarily
dismisses a portion of their claims in order to secure an
appeal, those dismissed claims are extinguished forever), see
also Dannenberg v. Software Toolworks, 16 F.3d 1073, 1077
(9th Cir. 1994) (concluding that a party may not revive claims
dismissed for the purposes of establishing a final appealable
order). As such, Appellants’ individual claims are moot.

        The question then becomes whether, in the absence of
any individual claim, Appellants nonetheless retain a personal
stake in the outcome of the litigation sufficient to prevent the
entire action from being rendered moot because they claim an
interest in representing others who have opted into the
collective action.

        We note that the issue of a named plaintiff’s ability to
maintain actions in a representative capacity in collective
actions brought under the FLSA, as compared to Rule 23
class actions, is in a state of flux. The Supreme Court has
recently reinforced its view that these procedural mechanisms
are essentially different. See Symczyk, 133 S. Ct. at 1529.
What remains unclear, however, is whether the fact that
individuals have already opted into Appellants’ actions by
filing written consents with the District Courts following
conditional certification would permit Appellants to retain a
justiciable interest in the litigation based on their




                              18
representative capacities. We need not decide whether it may,
however, because we believe that the unique fact pattern
here—namely, Appellants’ voluntary dismissal of their claims
with prejudice—has not only extinguished Appellants’
individual claims, but also any residual representational
interest that they may have once had. Ruppert v. Principal
Life Ins. Co., 705 F.3d 839, 844 (8th Cir. 2013) (holding that
a Rule 23 named plaintiff’s acceptance of a settlement offer
as to his individual claims mooted his interest in the denial of
class certification); Rhodes v. E.I. du Pont de Nemours & Co.,
636 F.3d 88, 100 (4th Cir. 2011) (“[W]hen a putative class
plaintiff voluntarily dismisses the individual claims
underlying a request for class certification, . . . there is no
longer a self-interested party . . . necessary to satisfy Article
III standing.”); cf. Pettrey v. Enter. Title Agency, Inc., 584
F.3d 701, 706 (6th Cir. 2009) (“Since the plaintiffs no longer
have an interest in shifting . . . costs to the putative class
members [following settlement of their claims], the court
cannot avoid the conclusion that this case is moot.”). This is
so because it would be anomalous to conclude that Appellants
are “similarly situated” to opt-in plaintiffs who, unlike
Appellants, have actually retained their individual claims.
Without any personal stake in the matter, Appellants should
not be permitted to represent opt-in plaintiffs. See White v.
Baptist Mem’l Health Care Corp., 699 F.3d 869, 878 (6th Cir.
2012) (“[A] lead plaintiff cannot be similarly situated and
represent opt-in plaintiffs without a viable claim.”); Grace v.
Family Dollar Stores, Inc., 637 F.3d 508, 519 (4th Cir. 2011)
(holding same).

       Therefore, we will leave for another day the difficult
question of whether an interest in representing opt-in




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collective-action plaintiffs alone may satisfy the personal-
stake requirement of Article III.

                            V.

      For the reasons discussed above, we will dismiss both
appeals for lack of jurisdiction.




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