Sink v. Marquardt et al
MEMORANDUM OPINION AND ORDER. Defendant Livingston's Motion to Alter Judgment 20 is GRANTED. There is no just reason for delay of dismissal and the Court directs entry of judgment as to Defendant Livingston. It is ORDERED that Defendant Livingston is hereby finally DISMISSED from this lawsuit and the action against him is terminated. Signed by District Judge Ron Clark on 2/4/18. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MANAGEMENT AND TRAINING
CORPORATION (“MTC”) AND DANIEL
CIVIL ACTION NO. 9:16-CV-117
MEMORANDUM OPINION AND ORDER
Plaintiff, Kevin Sink, an inmate formerly confined at the Diboll Unit, filed the abovereferenced civil rights action pursuant to 42 U.S.C. § 1983 against defendant Brad Livingston,
among other defendants.
On May 1, 2017, this Court entered an order dismissing defendant Livingston from the
above-referenced lawsuit (docket entry nos. 15 & 16). On August 3, 2017, defendant Livingston
filed a Motion to Alter Judgment (docket entry no. 20). In this Motion, defendant Livingston
requests the Court amend the judgment to include specific language to ensure its finality. Plaintiff
has no objection to this motion.
Federal Rule of Civil Procedure 54(b) states the following:
Judgment on Multiple Claims or Involving Multiple Parties. When
an action presents more than one claim for relief – whether as a claim,
counterclaim, cross claim, or third-party claim – or when multiple
parties are involved, the court may direct entry of a final judgment as
to one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay. Otherwise,
an order or other decision, however designated, that adjudicates fewer
than all the parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.
FED. R. CIV. P. 54(b). In order for a court to direct an entry of a final judgment upon one or more
though not all claims, there must be “an express determination that there is no just reason for delay”
and “an express direction for the entry of judgment.” Sears, Roebuck & Co. v. Mackey, 351 U.S.
427, 434-35 (1956). Without these two requirements, the order “which adjudicates less than all the
claims shall not terminate the action as to any of the claims” and “is subject to revision at any time.”
This Court’s prior order dismissing plaintiff’s claims against defendant Livingston does not
state that there is no just reason for delay nor does it contain an express direction for the entry of
judgment. Without these two elements, the order lacks finality and cannot terminate the action
against defendant Livingston despite the language granting dismissal.
Defendant Livingston’s Motion to Alter Judgment (docket entry no. 20) is GRANTED.
There is no just reason for delay of dismissal and the Court directs entry of judgment as to Defendant
Livingston. It is ORDERED that Defendant Livingston is hereby finally DISMISSED from this
lawsuit and the action against him is terminated.
So Ordered and Signed
Feb 4, 2018
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