Scribd Logo
Upload

Welcome to Scribd!

  • Emmitt v. Dickey, 10th Cir. (2006)

    Uploaded by

    Scribd Government Docs
    22 views7 pages
    The United States Court of Appeals for the Tenth Circuit dismissed Barbara Emmitt's appeal for lack of jurisdiction. Emmitt had filed a negligence lawsuit in state court against Patricia Dickey and R.I.G. Transportation after they defaulted. The case was removed to federal court, where the court set aside the defaults and granted Emmitt's motion for voluntary dismissal without prejudice. The court found that Emmitt was not legally prejudiced by the dismissal conditions and was improperly trying to appeal an interlocutory order, so it did not have jurisdiction over the appeal.

    Original Description:

    Filed: 2006-06-23 Precedential Status: Non-Precedential Docket: 05-6059

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    The United States Court of Appeals for the Tenth Circuit dismissed Barbara Emmitt's appeal for lack of jurisdiction. Emmitt had filed a negligence lawsuit in state court against Patricia Dickey and R.I.G. Transportation after they defaulted. The case was removed to federal court, where the court set aside the defaults and granted Emmitt's motion for voluntary dismissal without prejudice. The court found that Emmitt was not legally prejudiced by the dismissal conditions and was improperly trying to appeal an interlocutory order, so it did not have jurisdiction over the appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    22 views7 pages

    Emmitt v. Dickey, 10th Cir. (2006)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit dismissed Barbara Emmitt's appeal for lack of jurisdiction. Emmitt had filed a negligence lawsuit in state court against Patricia Dickey and R.I.G. Transportation after they defaulted. The case was removed to federal court, where the court set aside the defaults and granted Emmitt's motion for voluntary dismissal without prejudice. The court found that Emmitt was not legally prejudiced by the dismissal conditions and was improperly trying to appeal an interlocutory order, so it did not have jurisdiction over the appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    of 7

    F I L E D

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    FO R TH E TENTH CIRCUIT

    June 23, 2006


    Elisabeth A. Shumaker
    Clerk of Court

    BA RBA RA EM M ITT,
    Plaintiff-Appellant,
    v.
    PA TRIC IA A N N DIC KEY ; R .I.G.
    TRANSPORTATION; FIRST
    FINAN CIAL INSURANCE
    C OM PA N Y ; D O N A LD D IC KEY,

    No. 05-6059
    (D.C. No. CIV-04-1180-C)
    (W .D. Okla.)

    Defendants-Appellees.

    OR D ER AND JUDGM ENT *

    Before L UC ER O, EBEL, and M U RPH Y, Circuit Judges.

    Barbara Emmitt appeals the district courts decision to set aside defaults
    entered against defendants Patricia A nn Dickey and R.I.G. Transportation before
    granting M s. Emmitts motion to voluntarily dismiss her case. Because

    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. The court generally disfavors the citation of orders and
    judgments; nevertheless, an order and judgment may be cited under the terms and
    conditions of 10th Cir. R. 36.3.

    M s. Emmitts case was voluntarily dismissed without prejudice, we do not have


    jurisdiction over this appeal. Therefore, we DISM ISS the appeal.
    I
    M s. Emmitt filed an action in Oklahoma state court against M s. Dickey,
    R.I.G., and Fleet Insurance Company alleging M s. Dickey and R.I.G. were
    negligent in the operation of a tractor-trailer, causing M s. Emmitt to be injured.
    Neither M s. Dickey nor R.I.G. answered the complaint or entered an appearance,
    so the state court entered a Journal Entry of Judgment against them, with
    damages to be set later. After the court held a damages hearing, it entered
    another Journal Entry of Judgment against M s. Dickey and R.I.G. in the amount
    of one million dollars.
    Soon thereafter, M s. Emmitt stipulated to dismissing her claims against
    Fleet without prejudice and filed an amended complaint naming M s. Dickey,
    R.I.G., M s. Dickeys husband, Donald D ickey, and defendants insurer, First
    Financial Insurance Company, as defendants. First Financial removed the case to
    federal court. R.I.G. and M s. Dickey appeared and, asserting they had not
    actually been notified of the state court proceeding, they moved to vacate the
    state courts order entering judgment against them. First Financial joined in that
    motion. M s. Emmitt responded and moved, under Fed. R. Civ. P. 41(a)(2), to
    voluntarily dismiss her case without prejudice.

    -2-

    The district court determined the state courts order was more akin to an
    entry of default under Fed. R. Civ. P. 55(a), rather than a default judgment under
    Fed. R. Civ. P. 55(b). Applying the standards appropriate to setting aside an
    entry of default, it set aside the defaults against M s. Dickey and R.I.G. It then
    granted M s. Emmitts Rule 41(a)(2) motion and dismissed the action without
    prejudice.
    M s. Emmitt filed a Rule 59 motion to reconsider and alter the judgment in
    which she argued the defaults should not be vacated. She did not indicate that her
    motion to dismiss was conditional on not granting defendants motion, seek to
    withdraw her motion to dismiss, or otherwise contend the district courts decision
    to set aside the defaults affected her decision to dismiss the case. The district
    court denied the Rule 59 motion.
    M s. Emmitt appealed, objecting to the district courts decision to set aside
    the defaults. Noting a potential jurisdictional issue, we requested supplemental
    briefing on whether this court has jurisdiction to hear M s. Emmitts appeal. The
    parties have filed their supplemental briefs, and the appeal is ready for decision.
    II
    Federal courts are not courts of general jurisdiction; they have only the
    power that is authorized by Article III of the Constitution and the statutes enacted
    by Congress pursuant thereto. Bender v. Williamsport Area Sch. Dist., 475 U.S.
    534, 541 (1986). [T]his court must always satisfy itself of jurisdiction before
    -3-

    addressing the merits of a claim . . . . Cudjoe v. Indep. Sch. Dist. No. 12,
    297 F.3d 1058, 1063 (10th Cir. 2002). Under 28 U.S.C. 1291, we have
    jurisdiction to review final decisions of the district courts.
    Here, our concern with jurisdiction arises from the nature of the district
    courts disposition of this case a voluntary dismissal without prejudice. Usually
    a plaintiff cannot appeal the voluntary dismissal of her action without prejudice,
    because such appeals raise issues of non-aggrievement and non-finality that
    generally bar appellate jurisdiction. Brown v. Baeke, 413 F.3d 1121, 1124 n.3
    (10th Cir. 2005); see also Bryan v. Office of Pers. M gmt., 165 F.3d 1315, 1321
    (10th Cir. 1999); Coffey v. Whirlpool Corp., 591 F.2d 618, 620 (10th Cir. 1979)
    (per curiam).
    There are exceptions to the general rule. See Bryan, 165 F.3d at 1321 n.7.
    In this case, the most pertinent is the conditional dismissal exception. See id.
    (noting an exception where the court imposes terms as a condition of permitting
    dismissal). Apparently relying on the conditional dismissal exception,
    M s. Emmitt argues that, in vacating the defaults before granting her motion, the
    district courts order added objectionable terms to the dismissal she requested.
    Notably, however, she did not make these types of arguments to the district court
    in her Rule 59 motion, and she did not seek to withdraw her motion to dismiss on
    the basis of objectionable conditions.

    -4-

    To confer jurisdiction over the appeal, a conditional dismissal must result


    in legal prejudice to the plaintiff. See, e.g., Versa Prods., Inc. v. Home Depot,
    USA, Inc., 387 F.3d 1325, 1327 (11th Cir. 2004) (per curiam); Belle-M idwest, Inc.
    v. M o. Prop. & Cas. Ins. Guar. Assn, 56 F.3d 977, 978 (8th Cir. 1995). It does
    not appear that this court has yet considered legal prejudice from a plaintiffs
    view, but in County of Santa Fe v. Public Service Co. of New M exico, we held
    that a Rule 41(a)(2) dismissal that had the effect of foreclosing other parties
    claims was a clear example of legal prejudice. 311 F.3d 1031, 1048 (10th Cir.
    2002). This holding is in accord with other circuit courts decisions that, to show
    legal prejudice warranting appeal of a Rule 41(a)(2) dismissal without
    prejudice, a plaintiff must show the condition actually impairs his or her ability to
    bring another suit. See Ortega Trujillo v. Banco Central del Ecuador, 379 F.3d
    1298, 1302 (11th Cir. 2004) (per curiam) (finding no legal prejudice in a
    condition requiring payment of defendants costs and attorneys fees);
    Belle-M idwest, 56 F.3d at 978 (same); Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d
    548, 556 (9th Cir. 1986), abrogated by Townsend v. Holman Consulting Corp.,
    929 F.2d 1358 (9th Cir. 1990) (en banc) (same); LeCompte v. M r. Chip, Inc.,
    528 F.2d 601, 603-04 (5th Cir. 1976) (finding legal prejudice w here district court
    required plaintiff to secure courts permission to re-file his action, so his ability
    to re-file became uncertain).

    -5-

    Here, even assuming that the district courts decision to dismiss was
    conditioned on granting defendants motion, the setting aside of the defaults does
    not appear severe enough to constitute legal prejudice to M s. Emmitt. Rather
    than impairing her ability to bring another suit, the ruling places the parties in the
    positions they were in before the filing of the first complaint. That is the
    comm on situation when a party voluntarily dismisses a complaint without
    prejudice. See LeCompte, 528 F.2d at 603 (The effect of this type of dismissal is
    to put the plaintiff in a legal position as if he had never brought the first suit.).
    W e also are concerned M s. Emmitt essentially is seeking review of an
    interlocutory, unappealable order. Orders setting aside entries of default or
    vacating default judgments ordinarily are not final or appealable until after the
    conclusion of the proceedings. See Ballard v. Baldridge, 209 F.3d 1160, 1161
    (9th Cir. 2000) (default judgments); Haw. Carpenters Trust Funds v. Stone,
    794 F.2d 508, 512 (9th Cir. 1986) (entries of default). 1 In the multiple-claim
    context, this court has disapproved of dismissing some claims without prejudice
    in order to appeal the disposition of other claims. See Heimann v. Snead,
    133 F.3d 767, 769 (10th Cir. 1998) (per curiam); Cook v. Rocky M ountain Bank
    Note Co., 974 F.2d 147, 148 (10th Cir. 1992). M s. Emmitt appears to be trying to

    The district court concluded the state orders at issue here should be
    characterized as entries of default rather than default judgments. Given our lack
    of jurisdiction over this appeal, we have not reviewed the merits of that decision.
    -6-

    accomplish the same end in this appeal; she dismissed her action without
    prejudice and proceeded to appeal the interlocutory decision to which she objects.
    A party cannot so manufacture appellate jurisdiction. Cf. Heimann, 133 F.3d
    at 769; Cook, 974 F.2d at 148.
    This appeal is DISM ISSED for lack of jurisdiction. 2

    Entered for the Court

    M ichael R. M urphy
    Circuit Judge

    W e note this court has held that [a]lthough a dismissal without prejudice
    is usually not a final decision, where the dismissal finally disposes of the case so
    that it is not subject to further proceedings in federal court, the dismissal is final
    and appealable. Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir.
    2001). If plaintiff has been effectively excluded from federal court under the
    present circumstances, this court has jurisdiction to hear the appeal. Id. Further,
    [i]f it is clear that the plaintiff may not start over again with a properly drawn
    complaint, because of limitations problems or otherwise, the action is treated as
    final and the order is appealable. Bragg v. Reed, 592 F.2d 1136, 1138 (10th Cir.
    1979). It does not appear, however, that this line of authority is applicable to this
    case; the parties do not refer to this authority or argue that M s. Emmitt is
    excluded from re-filing in federal court because of applicable statutes of
    limitations or for any other reason.
    -7-

    You might also like