Crucial Exams

Multistate Bar Examination Practice Question

A plaintiff filed a diversity action in federal district court. The defendant moved under Rule 12(b)(6) to dismiss for failure to state a claim. The court granted the motion and entered an order dismissing the entire action without prejudice while expressly granting the plaintiff 21 days to file an amended complaint. Instead of amending, the plaintiff filed a notice of appeal two days later. How is the court of appeals most likely to treat the appeal?

  • The appeal is proper because the order ended the district court's involvement, making the dismissal final.

  • The appeal may proceed only if the district court issues a certification under 28 U.S.C. §1292(b), which has not been obtained here; therefore the court will dismiss the appeal.

  • The court of appeals will dismiss the appeal for lack of jurisdiction because an order dismissing without prejudice and granting leave to amend is not a final decision under 28 U.S.C. §1291.

  • The appeal is proper because dismissals without prejudice are treated the same as dismissals with prejudice for purposes of finality.

Multistate Bar Examination
Civil Procedure
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