IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANGELA DENISE NAILS, *

*

PLAINTIFF, * 1:06-CV-00737.WKW

*

vs. *

*

DOTHAN RESCUE MISSION, *

*

DEFENDANT. *

MOTION TO ALTER OR AMEND THE JUDGMENT

THE DEFENDANT, the Dothan Rescue Mission, moves the

Court to alter or amend its Final Judgment of April 12, 2007

(Document 61) to change the phrase dismissed without

prejudice  to dismissed with prejudice.  In support, the

Defendant states:

1. In Paragraph 1 of the Final Judgment in this

matter the Court states that this action is DISMISSED

without prejudice.  (Emphasis supplied).

2. Without prejudice  is defined as Without loss of

any rights; in a way that does not harm or cancel the legal

rights or privileges of a party <dismissed without

prejudice>. See dismissal without prejudice under

DISMISSAL.  Black s Law Dictionary 1596 (7th edition 1999).

3. Dismissal without prejudice  is defined as A

dismissal that does not bar the plaintiff from refiling the

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lawsuit within the applicable limitations period.  Black s

Law Dictionary 482 (7th edition 1999). Dismissal with

prejudice  is defined as A dismissal, usu. after an

adjudication on the merits, barring the plaintiff from

prosecuting any later lawsuit on the same claim.  Black s

Law Dictionary 482 (7th edition 1999). 

4. In its motion for summary judgment and

accompanying brief and evidentiary materials Dothan Rescue

Mission requested a full, final and appealable summary

judgment so that this matter would be ended with finality.

(Document 36).

5. This Court s Order of April 12, 2007 specifically

adopted the Recommendations of the Magistrate Judge

(Document 60).

6. The Magistrate Judge recommended that the

Defendant s Motion for Summary Judgment be granted.

(Document 51). 

7. It appears from this Court s Final Judgment and

the materials attached to that Judgment concerning appeal

that the Court intended to dismiss this action with

prejudice so that an appeal would lie. Fed. R. Civ. P. 54(a)

states:  Judgment   as used in these rules includes a

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decree and any order from which an appeal lies.  

8. Using the term without prejudice  is inconsistent

with using the term Final Judgment  and with the Court s

apparent intent to enter a final order from which an appeal

would lie. The Defendant requests the Court to correct this

inconsistency by altering or amending the words without

prejudice  in the Judgment with the words with prejudice. 

WHEREFORE, the Defendant moves the Court to alter or

amend its Final Judgment to state that this action is

dismissed with prejudice. 

HARDWICK, HAUSE, SEGREST & WALDING

BY: /S/ Kevin Walding 

Kevin Walding (WAL036)

ASB 8121-I-69J

BY: /s/ Patrick B. Moody 

Patrick B. Moody (MOO110)

ASB 0902-T-73M

Post Office Box 1469

Dothan, Alabama 36302

(334) 794-4144

(334) 671-9330 (FAX)

ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE

I hereby certify that, this date, I have served a copy

of this document on the following attorney (s) of record by

placing a copy in the United States Mail in a properly

addressed envelope with prepaid postage.

Angela Denise Nails

342 South Saint Andrews Street

Apartment 808

Dothan, Alabama 36301

This the 17th day of April, 2007.

 /S/ Kevin Walding 

Of Counsel

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