floored the morning may please the court jason bourne on behalf of the appellant this case presents a jurisdictional issue this court in a prior appeal dismissed the appeal finding that the order was non final because the had dismissed her one remaining claim without prejudice and then went back to the district court forty one motion and sought to dismiss that one remaining claim with prejudice the district court relying upon its own opinion ignoring cases from this court and other courts of appeal found that it lacked jurisdiction to entertain the rule forty one motion the district court aired this court's remand back to the district court directing it to grant the rule forty one motion and your final judgment so the pelican now appeal have absolutely honored that the appropriate and easy thing to do in these circumstances simply to amend the complaint rule fifteen and drop the claim or a party or whatever that's what that rules for and that's first second the stipulation of dismissal without prejudice was an operative and the rule for literal reading of the rule forty one in my view that's not the that's not the service provided by rule forty one which means to your benefit that there's that case pending down there in district court correct your honor that is what our the with everything in there that was in the one you came up the from appeal that is correct your own problem is that you were back in the district court this time you didn't for example after it came down move the court for leave to a man and drop the  we will certainly take it no matter how you get there is long as we get to where we want to go the final order no issue with the procedural path but the point on this appeal is the fact that if that step legend's an operative this that's where the case is right now well final judgment to be a woman twelve by any one you're on or if that's the court's position and it goes back to the district where that that's my position the only way you could otherwise you talk to rule forty one well certainly not not our intention your honor could be tortured and subject would cases my problem well but your honor the case law provides including from this court construction aggregates that if there's a for example not case partial summary judgment and the party said we don't want to continue litigating this court said but you don't have to go dismiss your one remaining claim with prejudice a counter claim you'll have an appeal border that's what the robinson reader court said only dispense it by amending the complaint and dropping the party you can't do it under rule forty one because that's not an action you can respectfully the courts allow that very procedure to be filed one of the remedy suggested is seek a dismissal with prejudice of that one remaining when you read judge judy's footnote and ryan your that's binding on our court understood you know if i wrote that put it in clay said the same thing but your honor seeking an amendment of the complaint to drop it is not the only route now your honor we are not going to take issue with ultimate goes back to the d here yes and your honor we don't want to be limited to the only way it can be done is by men men if for some reason there is some finding that that's not going to be permitted when the law that we are relying upon allows for the stipulation with dismissal the important distinction here and again if that's the remedy we go find but what the district court did in relying upon itself i said i think you're out of luck when instead of dismissing all your remaining counts all you would have had to do in the district court was move for an entry a final judgment on on all the other counts and you could have safely dismissed all the counts without prejudice so i think your situation's regrettable but it's entirely of your own doing your honor discord found in and i don't think the district court should be reversed on on on what it did the distinction for what the district court did and this court's holdings is that in p and c the issue there was a default was entered notice of voluntary dismissal without prejudice of the entire case not one remaining claim and the district court allowed upon this court's opinion in university of southern alabama where it was also dismissal without prejudice the entire case the district relies upon one line fell into the finality trap that you could have avoided by simply moving in for an entry of final judgment on the other counts if you knew you wanted to appeal this particular count the court could have granted that motion and certified the other counts and you would have had a perfectly available appeal and wouldn't have had to go back down in which case you had no jurisdiction here no jurisdiction there and completely left your client out of luck your honor in fact as the record shows we did move for rule fifty four certification with the district court that was denied now the  expressly determines there's no just reason for delay the court already determine in entering summary judgment that what you want to do appeal was an meritorious ok those were all the remaining counts were all of viable claims ready for trial and you gave them up at the last minute so you could appeal something right your honor there was one remaining claim which was a section one hundred eighty one claimed that was the one honor that was not the finding of the district court the district court simply found that ultimately this was not a situation which merited making out a final order that there was no further work to be done the district court to allow the jurisdiction but before the court today is not the issue of the finding in the involve manufacturing jurisdiction as was the case in state treasurer where this court found ryan does not preclude your poll rmy you can go back to the district court the cases that we rely upon robinson read or the blue case from the d c circuit all of these courts provide you will have an appellate remedy they specifically address the issue and among the remy's a suggest as noted amend your complaint and go seek a dismissal with prejudice from the district court these are available remedies that the courts of appeal provide now what the hell is in the district court to have this court belief is that this court's opinion construction aggregates where again the court said you want to appeal go back to the district court and just dismissed without prejudice or dismissed with prejudice would have this court believe that in construction aggregates in state treasurer and these other courts we cited that these were hypothetical remedies that in fact the appellant did not have could not take advantage of if they went back to the district court and did that and came back to this court and destruction aggregates this court was going to say well no that wasn't available to you although we told you to do that but that's on available rmy joke's on you that's just not possible respectfully and that's what it is not in keeping with with federal it's instructs us to construe administer and employ these rules to secure justice speedy and inexpensive determination of every at action and proceeding certainly ironic because the district are taking the view there is no such thing as a premature appeal can i ask you you know i think this is a hot mess and i'll be interested to hear from our colleagues but yet i'm assuming that you are prepared to stand in to the district court and said your honor you don't have still have jurisdiction because this was it was an operative we want to amend the complaint drop it out and up you come easy as absolutely it would take about twenty minutes and all of that and if this court will send us back and find the dischord has jurisdiction retains it we will happily do so and we will come back here and we can have this discussion again another day on the substantive claims but ultimately why the dischord doesn't have jurisdiction is this court's opinion in a naga now there dismissal with prejudice of the entire case that's not what we have here they're a selling was entered into and the question was whether the when there is a breach what's the case what's remaining in district court for you to amend the court dismissed with prejudice a number of claims you dismissed without what remains what what is there to amend their case general allegations the jurisdictional remain and the section one thousand eight hundred one claim remains as well so therefore didn't you amend why didn't you amend the complaint get rid of the without prejudice dismissal appeal what you want to do appeal and you not preclude that the district court still has jurisdiction and that the dismissal under rule forty one a one a small print to which allows for dismissal by stipulation was a viable remedy and that the district court still having jurisdiction this can be remedied by going back there and old me whether it's by amending whatever the route is the point is the district court's ruling was it did not have jurisdiction and in fact it still remains with the district court and there is the ability to have an appealable order i'll say my time for bo judge martin's point about rule one requiring the just speedy and inexpensive resolution to this case this case has been pending since january of two thousand and thirteen and the resolution has been anything but appeal to the district court ruling and she's never been permitted to do that you know the discourse and we don't have jurisdiction we're saying we don't have i mean our earlier panel said we don't have jurisdiction i mean your position is she's just out a lot she's not entitle to an appeal in this case yes your honor i believe that there were many paths available to the plaintiff for i mean for an appeal she didn't take any of them and my clients are still defending this matter and so i don't think that it's in any way just or fair to my client it wasn't just that the plaintiffs dismissed or the plaintive dismissed that claim without prejudiced that occurred on november ninth when they dismissed that claim without prejudiced on november nineteenth of two thousand one thousand the court then entered the final judgment on all the claims and all the defendants in this matter and the court said all claims in the matter had been dismissed and that nothing further remains to be done in this action for them to contrary to right the fifth circuit opinion when you exercise the opportunity to obtain a voluntary dismissal under rule forty one a one a two with a stipulation signed by all parties who have appeared it would appear that you voluntarily dismissed that claim but you have the bones of a case remaining in the district court that the judge could occurred it did have the power to dismiss it you don't have power to dismiss voluntarily under subsection little want you had to do it by stipulation under two which is what he did and in my view the stipulation that operat client is dropped all prior rulings remain in effect and a final judgment on twelve ninety one is honored and end of that and a final judgment was and i didn't want them for nineteen let a final judgment was injured in court the stipulation of dismissal was in operative the matter was still before the court if for any reason the judgment that was entered on november nineteenth two thousand and fourteen was in error in any way rule sixty provides that you could have gone back and sought absolute rough rule sixty well if that if the judgment that was entered on november ninth what you should have done is said to the judge look let's have him and the complaint just drop it out and our twelve ninety one judgment well under the upper case law when you file a voluntarily voluntarily east dit's dismissal without prejudice stipulate that all the party has an action without prejudice and action that the court still had the case and it's if that dismissal did not in the case on november ninth certainly when the court entered judgment on november not because because because the the so called the special with the person to stipulat that that has occurred over a year to year if there is no judgment terminating all claims against all parties adversely to plato that is actually the entered on november nineteenth it did actually dismiss all claims and enter judgment in favor of all defendants if that were in error there is a mechanism to either appeal that decision or to correct that judgment but the time period for having done that is lapsed and we would ask that this court affirm the district court denial of a motion to dismiss with prejudice at this point good morning may it please the court i'm theresa galli and i represent the much to be pitied schumacher defendants because unlike the age i'm a defendant we didn't participate in the forty one a one day proceedings at all in fact  the record clearly shows that my client obtained dismissal very early on in twenty thirteen of three counts on a motion to dismiss and then the remaining four counts with respect to my client's were dismissed on a motion for s judgment there was an error in that ruling the plaintiff moved for reconsideration again the section one nine hundred eighty one claim but i certainly agree with your honor's that there this is a procedural nightmare but it is of the plaintiffs making it is of the bit because that state for all kinds of down the road it does and it makes me question is anything final here and i say this respectfully i thought it was final with the last panel if we're discipline was  analysis here because the dr ryan says that if you want to do it without prejudice you you are mad the complaint under rule fifteen correct and i don't know why the parties these other parties did not do that but does this mean that we could ask for another panel if we are to overlook what the previous panel said if we're displeased with the outcome can we get a third panel here will this ever be over the plaintiff made a choice it was the day before trial my clients were out so here's what dr pam parry was facing and i think this is this is what really matters here her rationale her thought process she had eight claims against six defendant seven claims were gone with dismissed with prejudice and three of the six defendants were gone with prejudice she didn't want to go on and she had to put her case on the very next day she didn't want to so they came up with this strategy and struck a deal that my clients didn't participate in and now my clients are stuck for five years down the road dr pam perry was was hired in two thousand court your honor respectfully i think that the plaintiffs should have dismissed that claim without prejudice something that are with prejudice something that she's trying to do now and then she wouldn't have r what's wrong with the voluntary dismissal under rule forty one a with a motion for entry of a final judgment on the count she wanted to take up nothing but she didn't do that right that would have been the with a settlement if you get shut out here there and everywhere else right yes or no i can't disagree with that but again my clients are entitled to finality there are good reasons for the ryan rule it's at this is truly an effort to create appellate jurisdiction so that there could be a fast quick appeal of adverse rulings the plane of had other choices she just didn't exercise them and now if we're going to be focused on issues of fairness and of course we should always be focused on those issues my clients are now stuck we have no witnesses we have nobody nothing we we will totally be on years later to try to defend this case or try at we don't have a single witness left and we are not a participant they don't want that i mean what they really want is they want their their dismissed claims to be reviewed by this court right i mean that's what they were we think that there was a way for them a clear path for dr perry to entertain it is what i'm saying is the thought that you're going to have to defend claims in the district courts rather remote don't you think i don't know your honor i actually think that the rulings on our motion to dismiss and the motion motion for summary judgment are quite sound if you question that part of europe  dismissal without prejudice had bearing its run it would have been last december december of sixteen but during that period of time i mean dr perry could have resurrected and in a new this is a case of a procedural mess being made by the appellant and i believe that that's how this panel should decide this case she should be stuck with the bargain that she sought thank you what counsel just argued is that they'll be some prejudice this goes back to the district court for a trial the standard under rule forty one is clear legal prejudice as this court is noted in potent burn you have to show more than there's going to be some are going to be subsequent litigation they just don't want to know  have to bend it right but there they have not shown clearly good credit is just because the case will go on that's not the standard now what counselor present says there were three or four courses of action but they take issue with the one we took they can't have it both ways there are several courses now we say to american states versus daystar in our papers from the ninth circuit and in there addressing a stipulation for voluntary dismissal just like we had the court said the way to cure this jurisdictional defect includes dismissing with prejudice the claims on which the district court had not ruled petitioned the district court to reopen and amend the pleadings there are several pass there's nothing that precludes the path that we took there's no legal authority they cite to that says the path we took is improper in fact all that's in the briefing are the cases th cites you saying this is a proper path to go go back to the court and you can dismiss with prejudice that claim you'll have an appealable order ultimately the ryan rule doesn't preclude this as the court has noted the case from maine to the district court and that is what is on appeal this very narrow issue to the district court have jurisdiction to entertain the rule forty one motion and the answer is the district court did and we ask your man so that the district court can rule upon it we can have a final appeal border thank you chase earth life