Seven Oaks Construction, LLC v. Talbot Construction, Inc., et al

Filing 32

OPINION AND ORDER directing as follows: (1) The motions to alter or vacate (doc. nos. 27 & [28)] are granted; (2) The final judgment (doc. no. 26 ) is amended to reflect that the dismissal is without prejudice, as further set out. Signed by Honorable Judge Myron H. Thompson on 4/24/12. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

SEVEN OAKS CONSTRUCTION,
LLC,

)
)
)
Plaintiff,
)
)
v.
)
)
TALBOT CONSTRUCTION, INC., )
and TRAVELERS CASUALTY AND )
SURETY COMPANY, INC.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:11cv140-MHT
(WO)

OPINION AND ORDER
Based on the representations made on the record on
April 24, 2012, it is ORDERED as follows:
(1) The motions to alter or vacate (doc. nos. 27 &
28) are granted.
(2) The final judgment (doc. no. 26) is amended to
reflect that the dismissal is without prejudice.
***

The court believes that relief pursuant to Rule 59 of
the

Federal

Rules

of

Civil

Procedure

is

appropriate

because there was some confusion as to whether this case
had been stayed pending arbitration.

Indeed, this court

typically orders either a stay or a dismissal without
prejudice after ordering arbitration.

This confusion as

to the status of the case was reinforced by the fact that
the

case

substantial

remained
period

pending
of

time

without
before

action

the

court

for

a

ordered

dismissal.
Moreover, in the opinion accompanying dismissal of
this case, the court stated that it “assumes that Seven
Oaks has no objection to the dismissal of this case
against

Surety

Company”

and

that,

“If

the

court’s

assumption is incorrect, Seven Oaks should so inform the
court within seven days from the date of this opinion.”
Therefore, the basis of the dismissal was an assumption
of no opposition rather than on the merits.
aptly

and

immediately

informed

2

the

court

Seven Oaks
within

the

allowed time period that the court was mistaken.

This

case should not be dismissed with prejudice based on a
court’s mistake.
DONE, this the 24th day of April, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE