DIXON v. SELECT PORTFOLIO SERVICING COMPANY USA (2021)

Dave L. Dixon and Juliana K. Dixon seek to appeal the district court's order dismissing their civil complaint without prejudice and denying their motion to amend with leave to refile. This court may exercise jurisdiction over final orders, 28 U.S.C. § 1291, and certain interlocutory and collateral orders, 28 U.S.C. § 1292; Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The district court's dismissal of the Dixons’ complaint without prejudice “raises questions about the finality of the dismissal order, as dismissals without prejudice naturally leave open the possibility of further litigation in some form.” Bing v. Brivo Sys., LLC, 959 F.3d 605, 610 (4th Cir. 2020) (alteration and internal quotation marks omitted), cert. denied, No. 20-759, 2021 WL 666419, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d –––– (U.S. Feb. 22, 2021).

In Bing, we concluded that the without-prejudice dismissal was a final, appealable order for three reasons: (1) the plaintiff had failed to identify any facts that could be added to his complaint to cure the pleading deficiency; (2) the district court had directed the case to be closed after dismissing the complaint; and (3) the plaintiff had elected to stand on his complaint. Id. at 615. Weighing these factors here, we conclude that the district court's order is neither a final order nor an appealable interlocutory or collateral order.

Accordingly, we dismiss the appeal for lack of jurisdiction and remand to the district court with instructions to allow the Dixons to file an amended complaint. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015), abrogated in part by Bing, 959 F.3d at 614-15. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

DISMISSED AND REMANDED

PER CURIAM:

Dismissed and remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.