Hearn v. International Business Machines

Filing 47

ORDER denying as moot 43 Plaintiff's Motion for Permission to Appeal. Signed by Judge James S. Moody, Jr on 2/18/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BETTY HEARN, pro se,
Plaintiff,
v.

Case No: 8:13-cv-827-T-30EAJ

INTERNATIONAL BUSINESS
MACHINES, MARGARET (PEGGY)
BUIS, DAVID ALLCOCK and RUSSELL
MANDEL,
Defendants.

ORDER
THIS CAUSE comes before the Court upon the Plaintiff's Motion for Permission to
Appeal (Dkt. #43) and Defendants' Response in Opposition to the Motion (Dkt. #46). The
pro se Motion requests permission to appeal the following orders: Order Granting
Defendant’s Motion to Dismiss the Second Amended Complaint with Prejudice, (Dkt.
#32), Order Denying Plaintiff’s Motion for Entry of Clerk’s Default and Motion for Default
Judgment (Dkt. #36), Order Denying Plaintiff’s Motion for New Trial, Altering or
Amending Judgment (Dkt. #38), and Order Denying Plaintiff’s Motion for Reconsideration
and Demand for Jury Trial and Substitution (Dkt. #40). Plaintiff cites to the provisions for
interlocutory appeal under 28 U.S.C. §1292(b) or other petition under Rule 5 of the Federal
Rules of Appellate Procedure. Plaintiff has also filed a Notice of Appeal (Dkt. #44) which
the Clerk has transmitted to the Eleventh Circuit.

“Generally, an order dismissing a complaint is not final and appealable unless the
order holds that it dismisses the entire action or that the complaint cannot be saved by
amendment.” Van Poyck v. Singletary, 11 F.3d 146, 148 (11th Cir. 1994). In this case,
the Court dismissed the Plaintiff’s entire complaint with prejudice after she had three
opportunities to properly state a cause of action and failed to do so. Therefore, the appeal
is not interlocutory. See OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344,
1356 (11th Cir. 2008) (holding that plaintiff’s appeal of an order dismissing its claims with
prejudice is an appeal of a final judgment and authorized by 28 U.S.C. § 1291). Therefore,
the Motion is denied as unnecessary. See Standard Asbestos Mfg. & Insulating Co. v.
United States, 676 F.2d 119 (5th Cir. 1982). Additionally, since Plaintiff filed her Notice
of Appeal, the motion is moot.
It is therefore ORDERED AND ADJUDGED that Plaintiff’s Motion for Permission
to Appeal (Dkt. #43) is DENIED as moot.
DONE and ORDERED in Tampa, Florida, this 18th day of February, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2013\13-cv-827 permission to appeal.docx

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