## Facts

- Erin Keena bought a discounted massage voucher through Groupon’s website for services to be provided by a third-party merchant.
- Keena could not schedule the service and sought a refund from Groupon.
- Groupon declined to refund cash and instead issued “Groupon Bucks,” usable only on Groupon’s website.
- Keena twice assented online to Groupon’s Terms of Use through clickwrap-style prompts, including during account creation and checkout, with a hyperlink to the Terms.
- The Terms of Use contained a broad arbitration clause requiring “any dispute or claim” relating to the Terms, the site, or products/services offered through the site to be resolved by final, binding arbitration, with limited carve-outs and an individualized-claims requirement.
- Keena filed a putative class action challenging Groupon’s refund practice.

## Issues

1. Whether an arbitration order may be reviewed under 28 U.S.C. § 1291 when the plaintiff, after being compelled to arbitrate, procures dismissal of her own complaint with prejudice to obtain immediate appellate review.
2. Whether such a plaintiff-initiated dismissal constitutes an appealable “final decision” or instead impermissibly manufactures appellate jurisdiction.

## Decision

- The Fourth Circuit dismissed the appeal for lack of jurisdiction.
- The court held that a voluntary dismissal with prejudice, sought by the plaintiff to obtain review of an interlocutory order compelling arbitration, is not an appealable final decision under 28 U.S.C. § 1291.
- The court relied on the final-judgment rule and applied the reasoning of *Microsoft Corp. v. Baker* to reject this tactic as a means to bypass limits on interlocutory appeals.
- Because jurisdiction was lacking, the court did not reach the merits of the order compelling arbitration.

## Legal Principles

- Appellate jurisdiction under 28 U.S.C. § 1291 requires a “final decision”; parties generally may not convert an interlocutory order into an appealable judgment through a strategic voluntary dismissal.
- A plaintiff’s voluntary dismissal with prejudice aimed at securing immediate review of a nonfinal order is treated as an impermissible attempt to manufacture finality.
- The final-judgment rule cannot be circumvented to avoid statutory and rule-based mechanisms that control interlocutory review of arbitration-related orders and other pretrial rulings.

## Conclusion

The Fourth Circuit held that a plaintiff cannot create § 1291 appellate jurisdiction over an order compelling arbitration by requesting dismissal of her own case with prejudice for the purpose of appealing; the appeal was dismissed because the resulting dismissal was not a “final decision” in substance.


Keena v. Groupon, Inc., 886 F.3d 360 (4th Cir. 2018)