McKenzie v. AAA Auto Family Insurance Co. , 427 F. App'x 686 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
July 12, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
NOLAN MCKENZIE, Reverend,
Plaintiff-Appellant,
v. No. 10-3253
(D.C. No. 2:10-CV-02160-KHV-DJW)
AAA AUTO FAMILY INSURANCE (D. Kan.)
CO.; BANK OF AMERICA, INC.;
AUTO CLUB FAMILY INSURANCE
CO.,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HARTZ, Circuit Judge, and HOLLOWAY and PORFILIO, Senior
Circuit Judges.
Plaintiff Nolan McKenzie brought this action in Kansas state court against
his homeowner’s insurance carrier (initially misidentified as AAA Auto Family
Insurance Co., but later clarified to be defendant Auto Club Family Insurance Co.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(Auto Club)), complaining about overvaluation of his house, inflated payments,
and mishandling of escrow funds. After Auto Club removed the case to federal
court based on diversity, Mr. McKenzie purported to amend his pleadings,
without seeking leave to do so, by naming Bank of America, Inc., as an additional
defendant for its role in the collection of payments and disposition of escrow
funds. Eventually, the district court dismissed the claims against Bank of
America, Inc. without prejudice for lack of service. Shortly thereafter,
Mr. McKenzie submitted a voluntary stipulation dismissing his claims against
Auto Club, and a few days later, he filed this appeal. We dismiss for lack of
jurisdiction.
Unless a voluntary stipulation of dismissal specifies otherwise, “the
dismissal is without prejudice.” Fed. R. Civ. P. 41(a)(1)(B). That is the case
here. See R. vol. 1 at 264. Voluntary, without-prejudice dismissals “raise issues
of non-aggrievement and non-finality that generally bar appellate jurisdiction” on
behalf of the plaintiff, who has obtained the very result–a dismissal that does not
bar re-filing–that he wanted. 1 Brown v. Baeke, 413 F.3d 1121, 1124 n.3 (10th Cir.
2005); see, e.g., Coffey v. Whirlpool Corp., 591 F.2d 618, 620 (10th Cir. 1979).
1
If the plaintiff subsequently decides he should not have dismissed the case,
he may, as an alternative to refiling, seek to rectify the situation by moving in the
district court for relief from the dismissal under Fed. R. Civ. P. 60(b), but the
circumstances must implicate a cognizable ground for relief under the Rule.
Schmier v. McDonald’s, LLC, 569 F.3d 1240, 1242-43 (10th Cir. 2009).
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Further, voluntarily dismissing all remaining claims without prejudice after some
claims have been disposed of in a prior interlocutory order, as Mr. McKenzie did
here following the dismissal of his claims against Bank of America, Inc., does not
make the prior order appealable. Heimann v. Snead, 133 F.3d 767, 769 (10th Cir.
1998) (per curiam); Cook v. Rocky Mtn. Bank Note Co., 974 F.2d 147, 148
(10th Cir. 1992). 2 In sum, we cannot exercise appellate jurisdiction over any part
of this case.
Our jurisdiction, at least with respect to the order dismissing the claims
against Bank of America, Inc., might yet have been secured had Mr. McKenzie
(1) obtained from the district court an order properly certifying the dismissal as
final for purposes of appeal pursuant to Fed. R. Civ. P. 54(b), 3 or (2) dismissed
with prejudice the claims against Auto Club. See generally Hennigh v. City of
Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998) (indicating these two options for
2
We also note that Mr. McKenzie allegedly did not discover defendants’
wrongdoing until January 2010, so it does not appear from the pleadings that his
ability to re-file his claims would necessarily be precluded because of limitations
problems. See Bragg v. Reed, 592 F.2d 1136, 1138 (10th Cir. 1979) (indicating
dismissal without prejudice–at least involuntary dismissal–may be deemed final
and appealable if claims would clearly be time-barred).
3
While Rule 54(b) certification is available only for orders that are in fact
final with respect to the part of the case they resolve, see Weinman v. Fid. Capital
Appreciation Fund (In re Integra Realty Res., Inc.), 262 F.3d 1089, 1107-08
(10th Cir. 2001), the order dismissing the case against Bank of America, Inc.
without prejudice for lack of service qualified as final, see Constien v. United
States, 628 F.3d 1207, 1210 (10th Cir. 2010), cert. denied, ___ S. Ct. ___, 2011
WL 938810 (U.S. May 2, 2011).
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saving similarly deficient appeal). In two procedural orders raising questions
about the jurisdictional viability of this appeal, dated October 12, 2010 and
December 13, 2010, the clerk provided Mr. McKenzie repeated opportunities to
take such action to save his appeal from impending dismissal. The second time
period expressly allotted for such curative action has long since expired without
Mr. McKenzie taking advantage of the guidance and opportunity provided by the
court to forestall dismissal. Further forbearance is unwarranted.
This appeal is DISMISSED. All pending motions are DENIED.
Entered for the Court
William J. Holloway, Jr.
Senior Circuit Judge
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