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Xbox 360 Case Kills 'Death Knell' Strategy

By William Vogeler, Esq. on June 19, 2017 | Last updated on March 21, 2019

If you were playing 'Call of Duty,' what would be the point of pausing the game right before taking a lethal hit?

If your strategy was to come back later to try some new move, you were still going to die. The game won't let you avoid an inevitable death.

That's kind of how things played out in the U.S. Supreme Court in Microsoft v. Baker. Here's what happened to the plaintiffs, who claimed their Xbox 360 consoles scratched their game discs.

"Death Knell"

The plaintiffs lost their motion for class-action certification in a Seattle federal court, then appealed that decision to the U.S. Ninth Circuit Court of Appeal. They claimed the ruling was the "death knell" to the case because the plaintiffs' individually small claims made it "economically irrational" to bear the cost of litigation to a final judgment.

The appeals court denied their appeal, and the plaintiffs decided to dismiss their claims as a strategy to get to final judgment without having to litigate through trial. Microsoft stipulated to the dismissal, but contended the plaintiffs could not hold onto a right to appeal the class-certification ruling later.

After the trial judge ordered the dismissal, the plaintiffs appealed the ruling on certification. The appeals court ruled the judge erred in denying the class, but the Supreme Court reversed.

No Final Decision

The court said that the voluntary dismissal was not a final decision under the Judicial Code. Federal courts of appeals are empowered to review only "final decisions of the district courts" under 28 U. S. C. §1291.

"Respondents' voluntary-dismissal tactic, even more than the death-knell theory, invites protracted litigation and piecemeal appeals," the justices said in the unanimous decision.

Since the tactic subverted procedure, the Supreme Court said the appellate court did not have jurisdiction to decide the certification issue.

Reversed, remanded and game over.

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