Opinion
Case No. 3:96-cv-447-J-32HTS.
June 20, 2007
ORDER
Under the E-Government Act of 2002, this is a written opinion and therefore is available electronically. However, it is intended to decide the motion addressed herein and is not intended for official publication or to serve as precedent.
This case is before the Court on Plaintiffs' Substitute Motion For Dismissal Of Counterclaims With Prejudice And Alternatively For Rule 54(b) Certification Or Summary Judgment On Ford's Counterclaims Against Everean Mitchell (Doc. 217), and Ford Motor Credit Company's Motion For Sanctions. (Doc. 220.) Full discussion was had on the issues in both the parties' motions and responses to the motions (Docs. 218, 221), as well as at a hearing conducted by the Court on June 19, 2007.
Plaintiff Everean Mitchell ("Mitchell") seeks to appeal the Court's August 24, 2004 Order granting defendant Ford Motor Credit Company's ("Ford") Motion for Summary Judgment Against Mitchell. (Doc. 156.) A Judgment in favor of Ford, and against plaintiff Mitchell was entered on August 24, 2004 pursuant to the Court's Order. (Doc. 160.)
Without trying to recapitulate the somewhat convoluted procedural history, plaintiff has faced an impediment to appealing this Order because of the Court's dismissal of Ford's counterclaim without prejudice. When the Court granted Ford's unopposed motion to voluntarily dismiss the counterclaim and dismissed the defendant's counterclaim against plaintiff Mitchell without prejudice, it was not the Court's intention to deprive Mitchell of her right to appeal the summary judgment entered against her. However, the Eleventh Circuit has determined that it does not have appellate jurisdiction to hear Mitchell's appeal, presumably because the counterclaim was dismissed without prejudice. (Doc. 213.) In doing so, the Eleventh Circuit cited the cases CSX Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1327 (11th Cir. 2000) (holding that voluntary dismissal of a claim, without prejudice, is not a final order within the meaning of 28 U.S.C. § 1291), and Constr. Aggregates, Ltd. v. Forest Commodities Corp., 147 F.3d 1334, 1336-37 (11th Cir. 1998) (noting that the parties may obtain appellate review of a partial summary judgment order by having the district court dismiss the remaining claims with prejudice). (Id.)
Plaintiff has now asked this Court to re-enter the summary judgment as a Rule 54(b) judgment so it can be appealed. While I said in an earlier order that this would be an "inappropriate" use of Rule 54(b) (Doc. 210), I have reconsidered and (assuming this Court has jurisdiction) a Rule 54(b) judgment would seem to be the appropriate vehicle in this unusual situation. At least it will give the Eleventh Circuit one more opportunity to assume jurisdiction, if it is so inclined.
Finding that the order granting summary judgment in favor of defendant Ford and against plaintiff Mitchell (Doc. 156) is a final judgment in the sense that it is an ultimate disposition of Mitchell's claims for relief, that there is no just reason for delay in certifying it as final and immediately appealable, and that to do so would not lead to piecemeal appeals, see Lloyd Nolan Foundation, Inc. v. Tenet health Care Corp., 483 F.3d 773, 777-78 (11th Cir. 2007), the Court will certify the summary judgment order as a final appealable judgment, pursuant to Rule 54(b), Federal Rules of Civil Procedure.
Upon due consideration, it is hereby
ORDERED:
1. Plaintiffs' Substitute Motion For Dismissal Of Counterclaims With Prejudice And Alternatively For Rule 54(b) Certification Or Summary Judgment On Ford's Counterclaims Against Everean Mitchell (Doc. 217) is GRANTED IN PART to the extent that the Judgment entered on August 24, 2004 in favor of Defendant Ford and against plaintiff Mitchell (Doc. 160) is VACATED, and a Rule 54(b) Judgment will be entered in favor of Ford and against Mitchell.
2. Ford Motor Credit Company's Motion For Sanctions (Doc. 220) is DENIED. DONE AND ORDERED at Jacksonville, Florida.