It Ain’t Over ‘Till It’s Over: The Perils of Manufacturing Finality
“It ain’t over ‘till it’s over,” depending on your point of view, may be a Yogi-ism (as to baseball and life) or a Lenny Kravitz refrain (as to relationships). But it can also be an admonition from an appellate court that things in the trial court are not yet final, and the parties have jumped the gun in seeking appellate review. A recent First Circuit decision, Air-Con, Inc., v. Daikin Applied Latin America, LLC, No. 24-1863 (Aug. 21, 2026), serves as lesson to parties that might be tempted to manufacture finality. Dismissing an appeal because a counterclaim (dismissed, but without prejudice) remained viable, Air-Con underscores that federal appellate courts assiduously guard their jurisdiction and are the ultimate arbiters of when “it’s over” in the district court.
Facts and Procedure
Air-Con arose from a soured commercial relationship between defendant Daikin and plaintiff Air-Con. Eventually, Air-Con sued Daikin and others alleging that Daikin had impaired its distribution rights in violation of a Puerto Rico law commonly known as “Law 75.” Daikin responded in kind and brought a counter claim against Air-Con.
Daikin moved for summary judgment on Air-Con’s Law 75 claim. The court granted the motion. It denied, however, summary judgment on Daikin’s counter-claim for damages. Air Con then tried a few ill-conceived ways to get immediate appellate review of the order granting summary judgment against it. First, it brought what the district court construed as a Rule 54(b) motion. The court denied the motion, noting the overlap between Air-Con’s Law 75 claim and Daikin’s counterclaim. Air-Con then curiously invoked Federal Rule of Appellate Procedure 5 and filed a petition for leave to appeal the denial of the Rule 54(b) motion and the underlying summary-judgment decision. That rule is not a means for appellate jurisdiction, so the First Circuit denied the petition.
Those avenues denied, defendant Daikin moved under Federal Rule of Civil Procedure 41(a) and (c) to dismiss its counterclaim. Crucially, it did so without prejudice. “That way, the [district] court can enter judgment and the case can conclude” it wrote in support of dismissal. Slip. Op. at 4. The district court granted voluntary dismissal without prejudice and entered final judgment.
Finality for Appeal
The First Circuit, however, determined, seemingly sua sponte, that the district court was not correct that the judgment was final. The circuit court first outlined Rule 41, which by default, results in dismissals without prejudice. It then turned to general principles of finality. Under 28 U.S.C. § 1291, United States Courts of Appeal have jurisdiction from “all final decisions” of United States District Courts. Generally, a final decision is one that ends the litigation and leaves nothing else for the court to do than enter judgment. But, the Supreme Court has stressed that finality is not technical, but practical. It is a means “‘geared to achieving a healthy legal system and its contours are determined accordingly.” Microsoft Corp. v. Baker, 582 U.S. 23, 41 (2017) (cleaned up).
The First Circuit took its cue from Baker. There, the Supreme Court held that a voluntary dismissal of an individual plaintiff’s claims could not create a final judgment allowing an appeal of a denial of class certification. The proposed class included gamers alleging a faulty Xbox design ruined their gaming discs. The district court denied class certification. The Ninth Circuit denied interlocutory review under Fed. R. Civ. P. 23(f), which allows the court of appeal to permit appeals from an order denying or granting class certification. Plaintiffs, who presumably did not think it worth litigating over a few destroyed gaming discs, then conditionally dismissed their individual claims. They would revive them only if the class-certification decision was reversed. The Supreme Court squashed that gambit, ruling that the decision was not final. Conditionally dismissing the individual claims thwarted Rule 23(f) and disrupted the rule’s “careful calibration” of authority, making the parties the arbiters of finality. Baker, 582 U.S. at 40–41.
Applying Baker, First Circuit similarly found in Air-Con that “allowing evasion of finality requirements by voluntary dismissals without prejudice would disrupt the balance struck by statutes and rules in allowing only narrow categories of interlocutory appeals.” Air-Con, Slip. Op. at 14. This would have put “the parties in the driver’s seat,” rather than Congress and courts of appeal. Id.
Turning to First Circuit precedent, the court noted that its law provided no clear guidance. The circuit’s usual test for finality—whether any proceedings remain pending before the district court—“usually produces the right result.” Slip. Op. at 18. But the court noted that rule “does not engage with the problem here and the parties’ ability to manufacture the appearance of finality.” Slip. Op. at 18–19. And basing jurisdiction on an “illusion” of finality, “without paying attention to whether the dismissal was with or without prejudice is not consistent with Baker.” Id. at 19. The First Circuit noted that there was perhaps no discrete standard that could encapsulate finality as it has been applied and might be applied. After all, it is not a technical concept but one “geared to achieving a health legal system.” Id. at 19 (quoting Baker, 582 U.S. at 41). What the First Circuit could definitively determine, however, was that dismissal without prejudice “is not a route to finality when the dismissed claims may be revived in the district court.” Slip. Op. at 21. Finding otherwise would allow litigants, not the district court, to control the timing of an appeal by dismissing and reinstating claims as they wished.
This rule, the circuit court found, was in accord with that of other circuits. And it did not matter that here it was the appellee, not the appellant, that dismissed its claims without prejudice before the appeal. The circuit court, recognized, however, that application of the rule to an appellee could create some problems. For instance, a defendant confident of its chances on summary judgment, could serve and then dismiss a counter claim, thus foreclosing appeal if no further action was taken on the dismissed claims. Slip. Op. 26. But the court was satisfied that if such tactics were employed, courts had the tools to ensure a party’s appellate rights were not wiped away. For instance, the district court could require a dismissal with prejudice. Rule 60(b) could also afford relief. Similar recourse existed if the circuit court dismissed an appeal because a counter-claim dismissed without prejudice remained viable, and then, on remand, the district court did nothing because the previously dismissed claim was not before it.
Finality for Appeal is Not to be Manufactured
Air Con underscores that circuit courts will guard against parties’ attempts to subvert the final-judgment rule. It is now clear in the First Circuit that dismissal of a counter-claim without prejudice likely imperils finality. But the broader lesson is that any effort to short-circuit finality in a race to get to appellate review is likely to draw close scrutiny by the appellate court. Such self-created finality could well be viewed as an afront to the “healthy legal system” that the final-judgment rule protects.
Appellate finality is not hard and fast—less the last out of a ballgame Yogi would call “over” and more the ambiguous end to a relationship Lenny Kravitz repeated. But even if finality lacks clear borders, it is unmistakable that it is the appellate court who gets to determine when “it’s over” for purposes of finality for an appeal.
