Emmitt v. Dickey, 10th Cir. (2006)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
FO R TH E TENTH CIRCUIT
June 23, 2006

Elisabeth A. Shumaker
Clerk of Court
BA RBA RA EM M ITT,
Plaintiff-Appellant,
v.
PA TRIC IA A N N DIC KEY ; R .I.G.
TRANSPORTATION; FIRST
FINAN CIAL INSURANCE
C OM PA N Y ; D O N A LD D IC KEY,
No. 05-6059
(D.C. No. CIV-04-1180-C)
(W .D. Okla.)
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before L UC ER O, EBEL, and M U RPH Y, Circuit Judges.
Barbara Emmitt appeals the district courts decision to set aside defaults
entered against defendants Patricia A nn Dickey and R.I.G. Transportation before
granting M s. Emmitts motion to voluntarily dismiss her case. Because
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
M s. Emmitts case was voluntarily dismissed without prejudice, we do not have

jurisdiction over this appeal. Therefore, we DISM ISS the appeal.
I
M s. Emmitt filed an action in Oklahoma state court against M s. Dickey,
R.I.G., and Fleet Insurance Company alleging M s. Dickey and R.I.G. were
negligent in the operation of a tractor-trailer, causing M s. Emmitt to be injured.
Neither M s. 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 M s. Dickey and R.I.G. in the amount
of one million dollars.
Soon thereafter, M s. Emmitt stipulated to dismissing her claims against
Fleet without prejudice and filed an amended complaint naming M s. Dickey,
R.I.G., M s. Dickeys husband, Donald D ickey, and defendants insurer, First
Financial Insurance Company, as defendants. First Financial removed the case to
federal court. R.I.G. and M s. Dickey appeared and, asserting they had not
actually been notified of the state court proceeding, they moved to vacate the
state courts order entering judgment against them. First Financial joined in that
motion. M s. 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 courts 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 M s. Dickey and R.I.G. It then
granted M s. Emmitts Rule 41(a)(2) motion and dismissed the action without
prejudice.
M s. 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 courts decision
to set aside the defaults affected her decision to dismiss the case. The district
court denied the Rule 59 motion.
M s. Emmitt appealed, objecting to the district courts decision to set aside
the defaults. Noting a potential jurisdictional issue, we requested supplemental
briefing on whether this court has jurisdiction to hear M s. Emmitts 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
courts 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. M gmt., 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,
M s. Emmitt argues that, in vacating the defaults before granting her motion, the
district courts 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-M idwest, Inc.
v. M o. Prop. & Cas. Ins. Guar. Assn, 56 F.3d 977, 978 (8th Cir. 1995). It does
not appear that this court has yet considered legal prejudice from a plaintiffs
view, but in County of Santa Fe v. Public Service Co. of New M exico, 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 defendants costs and attorneys fees);
Belle-M idwest, 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. M r. Chip, Inc.,
528 F.2d 601, 603-04 (5th Cir. 1976) (finding legal prejudice w here district court
required plaintiff to secure courts permission to re-file his action, so his ability
to re-file became uncertain).
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Here, even assuming that the district courts 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 M s. 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
comm on 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.).
W e also are concerned M s. 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). 1 In the multiple-claim
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 M ountain Bank
Note Co., 974 F.2d 147, 148 (10th Cir. 1992). M s. Emmitt appears to be trying to
The district court concluded the state orders at issue here should be
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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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 DISM ISSED for lack of jurisdiction. 2
Entered for the Court
M ichael R. M urphy
Circuit Judge
W e note this court has held that [a]lthough a dismissal without prejudice
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 M s. Emmitt is
excluded from re-filing in federal court because of applicable statutes of
limitations or for any other reason.
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F I L E D

United States Court of Appeals

June 23, 2006

OR D ER AND JUDGM ENT *

Before L UC ER O, EBEL, and M U RPH Y, Circuit Judges.

M s. Emmitts case was voluntarily dismissed without prejudice, we do not have

To confer jurisdiction over the appeal, a conditional dismissal must result

Entered for the Court

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