O'Neel v. Chewelah Basin Ski Corp et al

Filing 42

ORDER DISMISSING CHEWELAH BASIN SKI CORP DBA 49 DEGREES NORTH AND CERTIFYING ORDER AT ECF NO. 39 AS A FINAL JUDGMENT FOR APPEAL. Granting 41 parties' Stipulation of Dismissal of Chewelah Basin Ski Corp dba 49 Degrees North. Signed by Judge Salvador Mendoza, Jr. (SK, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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JAMES P.E. O'NEEL, AN
INDIVIDUAL,
Plaintiff,

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v.

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CHEWELAH BASIN SKI CORP. DBA
49 DEGREES NORTH,

No. 2:16-CV-0018-SMJ

ORDER DISMISSING
CHEWELAH BASIN SKI CORP.
DBA 49 DEGREES NORTH AND
CERTIFYING ORDER AT ECF
NO. 39 AS A FINAL JUDGMENT
FOR APPEAL

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Defendant.
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On August 19, 2016, the parties filed a stipulated dismissal, ECF No. 41.

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The parties stipulated to: (1) Plaintiff reserving “all rights to appeal regarding the

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underlying decision with respect to the United States of America” and (2)

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dismissing the remaining Defendant, Chewelah Basin Ski Corp. dba 49 Degrees

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North, without prejudice. Id.

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In order to effectuate the parties’ intent, this Court must enter an order

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approving their agreement since (1) an answer has been filed in this case and (2)

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the parties agreed to preserve Plaintiff’s appeal rights. Id.; ECF No. 13; Fed. R.

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Civ. P. 41(a)(1), 41(a)(2), and 54(b); Concha v. London, 62 F.3d 1493, 1506-07

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(9th Cir. 1995) (“Once the defendant files an answer or a motion for summary

ORDER - 1

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judgment, the plaintiff may no longer voluntarily dismiss without a court order

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under Rule 41(a)(1), but must file a motion for voluntary dismissal under Rule

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41(a)(2). Court approval of a Rule 41(a)(2) motion is required.”). Although the

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parties did not style their stipulation as a motion under Rule 41(a)(2), what they

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seek requires dismissing and closing this case as no Defendant remains, so the

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Court follows Rule 41(a)(2).

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Moreover, the Court clarifies that its decision granting the United States’

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Motion to Dismiss for Lack of Jurisdiction and dismissing claims against the

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United States without prejudice is a final judgment for purposes of appeal. ECF

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No. 39; Fed. R. Civ. P 54(b); see 10 Charles Alan Wright & Arthur Miller,

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Federal Practice and Procedure § 2654 (3d ed. 2016). Therefore, Plaintiff may

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appeal that decision.

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As such, IT IS HEREBY ORDERED:

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dba 49 Degrees North, ECF No. 41, is GRANTED.

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2.

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All claims are DISMISSED WITHOUT PREJUDICE, with all
parties to bear their own costs and attorneys’ fees.

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Defendant Chewelah Basin Ski Corp. dba 49 Degrees North is
DISMISSED WITHOUT PREJUDICE.

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The parties’ Stipulation of Dismissal of Chewelah Basin Ski Corp.

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All pending motions are DENIED AS MOOT.

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All hearings and other deadlines are STRICKEN.

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The Clerk’s Office is directed to CLOSE this file.

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IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order

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and provide copies to all counsel.
DATED this 31st day of August 2016.

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______________________________________
SALVADOR MENDOZA, JR.
United States District Judge

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ORDER - 3