Eastom v. City of Tulsa , 563 F. App'x 595 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 25, 2014
Elisabeth A. Shumaker
Clerk of Court
DUSTIN ROBERT EASTOM,
Plaintiff-Appellant,
v. No. 13-5127
(D.C. No. 4:11-CV-00581-HE-PJC)
CITY OF TULSA, a municipal (N.D. Okla.)
corporation; JEFFREY MICHAEL
HENDERSON, individually and in his
official capacity; BRANDON J.
MCFADDEN, individually and in his
official capacity,
Defendants-Appellees,
and
BUREAU OF ALCOHOL, TOBACCO,
FIREARMS AND EXPLOSIVES, an
agency of the United States of America;
UNITED STATES OF AMERICA,
Defendants.
ORDER AND JUDGMENT*
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.
Plaintiff Dustin Eastom appeals the district court’s grant of summary judgment
in favor of the defendants-appellees on his claims for malicious prosecution under
42 U.S.C. § 1983, and for negligence under Oklahoma’s Governmental Tort Claims
Act. We dismiss for lack of jurisdiction.
Plaintiff was convicted of drug charges based on evidence discovered during a
search of his home conducted by defendant Jeffrey Henderson, then a Tulsa police
officer, defendant Brandon McFadden, then an agent with the federal Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF), and others. After Plaintiff’s
conviction, Henderson was convicted of perjury and civil-rights violations, and
McFadden admitted providing false evidence in criminal cases and was convicted of
drug charges. Ultimately, Plaintiff’s judgment and sentence were set aside, and he
filed a complaint against the ATF, the City of Tulsa, Henderson, and McFadden
asserting violations of his constitutional rights and state law negligence claims. All
of the defendants were served and all of the defendants, except McFadden, filed
dispositive motions.
McFadden filed a suggestion of bankruptcy, stating that he had filed for
bankruptcy protection and that Plaintiff’s suit against him was, therefore,
automatically stayed pursuant to 11 U.S.C. § 362. During the litigation, the parties
stipulated to lifting the automatic stay, and the district court directed the parties to
file a copy of an order from the Bankruptcy Court lifting the stay. But no such order
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was ever filed, and Plaintiff acknowledges that the automatic stay in McFadden’s
bankruptcy proceeding remains in effect. See Aplt. Reply Br. at 5. The district court
dismissed the complaint against ATF and granted summary judgment in favor of the
City of Tulsa and Henderson. But the district court did not adjudicate Plaintiff’s
claims against McFadden. Indeed, because of the automatic stay, the district court
lacked power to adjudicate the McFadden claims. Ellis v. Consol. Diesel Elec. Corp.,
894 F.2d 371, 372-73 (10th Cir. 1990) (holding that any action taken by a court
during the course of a stayed judicial proceeding, including judgment entered in
favor of the debtor, would constitute a violation of the stay). Plaintiff appealed.
Except in circumstances not present here, this court’s appellate jurisdiction is
limited to review of final decisions. Albright v. UNUM Life Ins. Co., 59 F.3d 1089,
1092 (10th Cir. 1995); 28 U.S.C. § 1291. “A final judgment is one that terminates all
matters as to all parties and causes of action.” Utah v. Norton, 396 F.3d 1281, 1286
(10th Cir. 2005) (internal quotation marks omitted). We issued an order directing
Plaintiff to show cause why the appeal should not be dismissed for lack of
jurisdiction because there was no final judgment as to all parties. We advised
Plaintiff that he could pursue a final judgment in the district court or seek a
certification pursuant to Fed. R. Civ. P. 54(b). See Lewis v. B.F. Goodrich Co.,
850 F.2d 641, 645-46 (10th Cir. 1988) (holding that rulings encompassing fewer than
all claims may nonetheless be considered by this court where a party seeks and
obtains a Rule 54(b) certification from the district court).
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In response, Plaintiff returned to district court and voluntarily dismissed
McFadden without prejudice. The district court then granted Plaintiff’s motion to
enter final judgment. A plaintiff may not, however, manufacture finality with a
voluntary dismissal without prejudice. See Cook v. Rocky Mountain Bank Note Co.,
974 F.2d 147, 148 (10th Cir. 1992) (“[W]hen a plaintiff voluntarily requests
dismissal of her remaining claims without prejudice in order to appeal from an order
that dismisses another claim with prejudice . . . the order is not ‘final’ for purposes of
§ 1291.”).
Plaintiff argues his voluntary dismissal operates as a “with prejudice”
dismissal because the statute of limitations has run and he is effectively unable to
refile his claims against McFadden. See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d
1271, 1275 (10th Cir. 2001) (“Although 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.”). We
are not persuaded that Plaintiff cannot refile, however, because Oklahoma’s savings
statute, 12 Okla. Stat. tit. § 100, affords civil plaintiffs an additional year to refile if a
case fails other than on the merits after the original limitations period has expired.
See Twashakarris, Inc. v. INS, 890 F.2d 236, 237 (10th Cir. 1989); Grider v. USX
Corp., 847 P.2d 779, 783 (Okla. 1993).
Thus, we conclude we lack jurisdiction to review Plaintiff’s appeal because the
order he appealed is not a final judgment. Plaintiff asks for additional time to obtain
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a Rule 54(b) certification, if we conclude, as we do, that we lack a final, appealable
order. We decline to do so, as we previously advised Plaintiff of that option and gave
him time to obtain Rule 54(b) certification. See Lewis, 850 F.2d at 645 (stating we
will summarily dismiss for lack of jurisdiction if party fails to obtain a Rule 54(b)
certification or a final, dispositive order by the date specified in our show cause
order).
We dismiss the appeal for lack of jurisdiction.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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