R. DiPrete v. 950 Fairview Street, LLC
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cv-00034-JPJ-PMS. Copies to all parties and the district court/agency. . Mailed to: R. Copeland, R. Francis DiPrete. [17-1800]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
R. FRANCIS DIPRETE,
Plaintiff - Appellant,
950 FAIRVIEW STREET, LLC; MICHAEL STRAMIELLO; MICHAEL
Defendants - Appellees.
Appeal from the United States District Court for the Western District of Virginia, at
Abingdon. James P. Jones, District Judge. (1:15-cv-00034-JPJ-PMS)
Submitted: March 26, 2018
Decided: April 10, 2018
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
Dismissed and remanded by unpublished per curiam opinion.
R. Francis DiPrete, Appellant Pro Se. Robert Lucas Hobbs, ELLIOTT, LAWSON &
MINOR, PC, Bristol, Virginia, for Appellee Michael Cosola.
Unpublished opinions are not binding precedent in this circuit.
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R. Francis DiPrete seeks to appeal the district court’s order granting summary
judgment to Michael Cosola, one of the three Defendants against whom DiPrete filed his
complaint. Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), DiPrete and the other Defendants,
Michael Stramiello and 950 Fairview Street, LLC, stipulated to the voluntary dismissal
without prejudice of DiPrete’s claims against those Defendants. This court may exercise
jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and
collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 545-46 (1949).
Because the Rule 41(a)(1)(A)(ii) stipulated dismissal without prejudice of DiPrete’s
claims against Stramiello and 950 Fairview Street, LLC, created a nonfinal split judgment,
the summary judgment order DiPrete seeks to appeal—the dismissal as to Cosola—is
neither a final order nor an appealable interlocutory or collateral order. See Waugh Chapel
S., LLC v. United Food & Commercial Workers Union Local 27, 728 F.3d 354, 359 (4th
Cir. 2013) (discussing the use of voluntary dismissal to manufacture jurisdiction over
otherwise interlocutory orders); Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619,
623 (4th Cir. 2015). Accordingly, we dismiss the appeal for lack of jurisdiction and remand
the case to the district court for further proceedings. * We dispense with oral argument
Proceedings on remand could include reinstatement of the claims against
Stramiello and 950 Fairview Street, LLC, or a stipulation that the claims against those
Defendants be dismissed with prejudice.
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because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
DISMISSED AND REMANDED
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