In a short opinion issued today, Judge Pauley granted the motion of a plaintiff to voluntarily dismiss his surviving claims after Judge Pauley had dismissed the plaintiff’s main claims, setting up an immediate appeal to the Second Circuit. The plaintiff made his motion contingent on the outcome of its forthcoming appeal to the Second Circuit — if the plaintiff wins the appeal and Judge Pauley is reversed, he may reassert his dismissed claims; if not, then the claims are dismissed with prejudice. As Judge Pauley explained, “This unusual procedure by which Plaintiffs can obtain what bears a passing resemblance to an interlocutory appeal was approved by the Second Circuit in Purdy v. Zeldes:
[W]hen a plaintiff is completely free to relitigate voluntarily dismissed claims, the final judgment rule ordinarily precludes this court from reviewing any adverse determination by the district court in that case. However, where, as here, a plaintiff’s ability to reassert a claim is made conditional on obtaining a reversal from this court, the finality rule is not implicated in the same way …. We therefore hold that a conditional waiver … creates a final judgment reviewable by this court.
Here, the plaintiff decided the his surviving claims were of de minimus value, and both his own and the Court’s resources would be better served litigating the dismissed claim (for a $200 million real estate commission). Judge Pauley agreed, and granted the motion to dismiss contingent on the outcome of the appeal.