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. 

F I LED

United States Court of Appeals

Tenth Circuit

June 23, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BARBARA EMMITT,

Plaintiff-Appellant,

v.

PATRICIA ANN DICKEY; R.I.G.

TRANSPORTATION; FIRST

FINANCIAL INSURANCE

COMPANY; DONALD DICKEY,

Defendants-Appellees.

No. 05-6059

(D.C. No. CIV-04-1180-C)

(W.D. Okla.)

ORDER AND JUDGMENT

*

Before LUCERO, EBEL, and MURPHY, Circuit Judges.

Barbara Emmitt appeals the district court’s decision to set aside defaults

entered against defendants Patricia Ann Dickey and R.I.G. Transportation before

granting Ms. Emmitt’s motion to voluntarily dismiss her case. Because
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Ms. Emmitt’s case was voluntarily dismissed without prejudice, we do not have

jurisdiction over this appeal. Therefore, we DISMISS the appeal.

I

Ms. Emmitt filed an action in Oklahoma state court against Ms. Dickey,

R.I.G., and Fleet Insurance Company alleging Ms. Dickey and R.I.G. were

negligent in the operation of a tractor-trailer, causing Ms. Emmitt to be injured. 

Neither Ms. 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 Ms. Dickey and R.I.G. in the amount

of one million dollars. 

Soon thereafter, Ms. Emmitt stipulated to dismissing her claims against

Fleet without prejudice and filed an amended complaint naming Ms. Dickey,

R.I.G., Ms. Dickey’s husband, Donald Dickey, and defendants’ insurer, First

Financial Insurance Company, as defendants. First Financial removed the case to

federal court. R.I.G. and Ms. Dickey appeared and, asserting they had not

actually been notified of the state court proceeding, they moved to vacate the

state court’s order entering judgment against them. First Financial joined in that

motion. Ms. Emmitt responded and moved, under Fed. R. Civ. P. 41(a)(2), to

voluntarily dismiss her case without prejudice. 
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The district court determined the state court’s 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 Ms. Dickey and R.I.G. It then

granted Ms. Emmitt’s Rule 41(a)(2) motion and dismissed the action without

prejudice. 

Ms. 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 court’s decision

to set aside the defaults affected her decision to dismiss the case. The district

court denied the Rule 59 motion.

Ms. Emmitt appealed, objecting to the district court’s decision to set aside

the defaults. Noting a potential jurisdictional issue, we requested supplemental

briefing on whether this court has jurisdiction to hear Ms. Emmitt’s 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
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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

court’s 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. Mgmt., 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,

Ms. Emmitt argues that, in vacating the defaults before granting her motion, the

district court’s 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.
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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-Midwest, Inc.

v. Mo. Prop. & Cas. Ins. Guar. Ass’n, 56 F.3d 977, 978 (8th Cir. 1995). It does

not appear that this court has yet considered “legal prejudice” from a plaintiff’s

view, but in County of Santa Fe v. Public Service Co. of New Mexico, 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 defendant’s costs and attorney’s fees);

Belle-Midwest, 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. Mr. Chip, Inc.,

528 F.2d 601, 603-04 (5th Cir. 1976) (finding legal prejudice where district court

required plaintiff to secure court’s permission to re-file his action, so his ability

to re-file became uncertain).
The district court concluded the state orders at issue here should be 1

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. 

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Here, even assuming that the district court’s 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 Ms. 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

common 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.”). 

We also are concerned Ms. 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). In the multiple-claim 1

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 Mountain Bank

Note Co., 974 F.2d 147, 148 (10th Cir. 1992). Ms. Emmitt appears to be trying to
We note this court has held that “[a]lthough a dismissal without prejudice 2

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 Ms. Emmitt is

excluded from re-filing in federal court because of applicable statutes of

limitations or for any other reason.

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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 DISMISSED for lack of jurisdiction.2

Entered for the Court

Michael R. Murphy

Circuit Judge