On October 6, 2015, in Kitchen v. Heyns, the US Court of Appeals for the Sixth Circuit joined the US Courts of Appeals for the Third, Eighth, Tenth and Eleventh Circuits in concluding that it lacked appellate jurisdiction over an appeal from an order that dismissed some but not all of the defendants in the lawsuit (No. 15-2048, (6th Cir. Oct. 6, 2015)).

In a pro se lawsuit, Michael Kitchen alleged constitutional violations against 22 corrections officers. Seven of the officers were based in one prison while 13 were based in another. Kitchen sued the remaining two officers based on their statewide responsibilities. Citing impermissible joinder under FRCP 20(a)(2), the defendants asked the district court to dismiss all of the defendants except for the first seven. The district court agreed, keeping the seven related defendants and dismissing the other 15 without prejudice under FRCP 21. Kitchen appealed.

The Sixth Circuit held that it lacked appellate jurisdiction over orders that dispose of fewer than all of the claims and parties in the complaint. The court looked at FRCP 21 and noted how a court can add or drop parties, or sever claims against parties where there is a misjoinder or nonjoinder. Severing claims creates two different actions, while dropping parties preserves the originally filed lawsuit. Appellate jurisdiction can arise if one of the severed cases is dismissed entirely, resulting in a final order. However, a case that dismisses some of the parties does not result in a final judgment. Because the district court only dropped 15 out of 22 defendants and did not sever the claims (and subsequently dismiss a case in its entirety), there was no final judgment. The Sixth Circuit therefore lacked appellate jurisdiction. Furthermore, Kitchen could file a separate lawsuit against the dropped defendants.