The following excerpt is from Shannon v. General Electric Co., 186 F.3d 186 (2nd Cir. 1998):
Palmieri, 88 F.3d at 139 (citations and internal quotation marks omitted). Moreover, if a party who was disappointed by an interlocutory ruling could obtain an appeal of that ruling by simply refusing to prosecute his or her lawsuit, "adherence [to the merger rule] would reward [that] party for dilatory and bad faith tactics." John's Insulation, 156 F.3d at 105 (quoting Sere v. Board of Trustees of the Univ. of Illinois, 852 F.2d 285, 288 (7th Cir. 1988)). Such a result would conflict with "[t]he purpose of a Rule 41(b) dismissal for failure to prosecute . . . [, which] is to penalize dilatoriness and harassment of defendants." Id. at 107. These considerations suggest that interlocutory orders should not ordinarily merge with a final judgment dismissing an action for failure to prosecute. Cf. Palmieri, 88 F.3d at 139-42 (holding that the district court's in limine evidentiary ruling did not merge with its final judgment dismissing the action for failure to prosecute after the plaintiff refused to proceed to trial without the excluded evidence, and characterizing the appeal as "illustrat[ing] the problems that arise when a party tries to evade the final judgment rule").
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