IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

LUMBERMAN’S UNDERWRITING )

ALLIANCE, as Subrogee of TRANSPORT )

LEASING/CONTRACT, INC.; HANSEN & )

ADKINS AUTO TRANSPORT, )

 )

PLAINTIFF, )

 )

v. ) CASE NO. 3:06-cv-645-MEF-TFM

 )

EMORY LEE YOUNG, et al., )

 )

DEFENDANTS. )

FINAL JUDGMENT

This cause is before the Court on Plaintiff’s Motion to Dismiss with Prejudice (Doc.

# 28) filed on August 3, 2007. By this motion, Plaintiff seeks to unilaterally dismiss this

action with prejudice because it has settled. Pursuant to Rule 41(a)(1) of the Federal Rules

of Civil Procedure, a plaintiff may only voluntarily and unilaterally dismiss an action against

a defendant prior to the time that defendant files an answer or motion for summary judgment,

whichever first occurs. After a defendant files an answer or motion for summary judgment,

a plaintiff seeking to dismiss claims against a defendant must file either: a stipulation of

dismissal signed by all parties who have appeared in the action or a proper motion which may

be granted absent objection from the defendant. See Fed. R. Civ. P. 41(a)(1)(ii) & Fed. R.

Civ. P. 41(a)(2). Here, one of the defendants has filed an answer. In such circumstances, the

Court prefers the parties to file a joint stipulation of dismissal signed by all parties who have

appeared. Instead of filing a proper joint stipulation of dismissal, Plaintiff has instead opted

Case 3:06-cv-00645-MEF-TFM Document 29 Filed 08/09/2007 Page 1 of 2
 The Court notes that normally dismissals pursuant to Rule 41(a)(2) are WITHOUT 1

PREJUDICE, but Plaintiff asks for the dismissal in this case to be with prejudice.

to file a motion to dismiss. Because the procedural history of the case precludes the

application of Federal Rule of Civil Procedure 41(a)(1), the Court presumes that this motion

is made pursuant to Federal Rule of Civil Procedure 41(a)(2). Plaintiff has indicated that 1

this matter has been settled to the satisfaction of all parties. To date, no other party has

contradicted this representation. 

Accordingly, it is hereby ORDERED and ADJUDGED as follows:

1. Plaintiff’s Motion to Dismiss with Prejudice (Doc. # 28) is GRANTED.

2. All claims are DISMISSED WITH PREJUDICE, each party to bear his or its own

costs and expenses.

3. All other pending motions are DENIED as MOOT. 

4. The Clerk of the Court is directed to enter this document on the civil docket as a

Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure and close this

file.

 DONE this the 9 day of August, 2007. th

 /s/ Mark E. Fuller 

CHIEF UNITED STATES DISTRICT JUDGE

Case 3:06-cv-00645-MEF-TFM Document 29 Filed 08/09/2007 Page 2 of 2
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov

Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.

CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by

statute:

(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and

judgments of district courts, or final orders of bankruptcy courts which have been

appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are

appealable. A final decision is one that “ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre,

701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and

recommendation is not final and appealable until judgment thereon is entered by a

district court judge. 28 U.S.C. § 636(c).

(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than

all parties or all claims is not a final, appealable decision unless the district court has

certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v.

Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all

issues except matters, such as attorneys’ fees and costs, that are collateral to the

merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486

U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v.

Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders

“granting, continuing, modifying, refusing or dissolving injunctions or refusing to

dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . .

determining the rights and liabilities of parties to admiralty cases in which appeals

from final decrees are allowed.” Interlocutory appeals from orders denying temporary

restraining orders are not permitted.

(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification

specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to

appeal is filed in the Court of Appeals. The district court’s denial of a motion for

certification is not itself appealable.

(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited

exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949);

Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d

371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157,

85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).

 Rev.: 4/04

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2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional.

Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a)

and (c) set the following time limits:

(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set

forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the

entry of the order or judgment appealed from. However, if the United States or an

officer or agency thereof is a party, the notice of appeal must be filed in the district

court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND

FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF

THE APPEAL PERIOD – no additional days are provided for mailing. Special

filing provisions for inmates are discussed below.

(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party

may file a notice of appeal within 14 days after the date when the first notice was

filed, or within the time otherwise prescribed by this Rule 4(a), whichever period

ends later.”

(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under

the Federal Rules of Civil Procedure of a type specified in this rule, the time for

appeal for all parties runs from the date of entry of the order disposing of the last

such timely filed motion.

(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district

court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may

be extended if a motion for an extension is filed within 30 days after expiration of the

time otherwise provided to file a notice of appeal, upon a showing of excusable

neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district

court finds upon motion that a party did not timely receive notice of the entry of the

judgment or order, and that no party would be prejudiced by an extension.

(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in

either a civil case or a criminal case, the notice of appeal is timely if it is deposited in

the institution’s internal mail system on or before the last day for filing. Timely filing

may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized

statement, either of which must set forth the date of deposit and state that first-class

postage has been prepaid.

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of

Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of

appeal must be signed by the appellant.

4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the

filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule

on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

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