Filed: Oct. 27, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 27, 2006 Charles R. Fulbruge III No. 05-30669 Clerk ROGER CUROL, Plaintiff - Appellant, versus ENERGY RESOURCES TECHNOLOGY INC; ET AL, Defendants AOP INDUSTRIES INC, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Louisiana Case No. 2:03-CV-3126 Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges. PER CURIAM:* Appel
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 27, 2006 Charles R. Fulbruge III No. 05-30669 Clerk ROGER CUROL, Plaintiff - Appellant, versus ENERGY RESOURCES TECHNOLOGY INC; ET AL, Defendants AOP INDUSTRIES INC, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Louisiana Case No. 2:03-CV-3126 Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges. PER CURIAM:* Appell..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 27, 2006
Charles R. Fulbruge III
No. 05-30669 Clerk
ROGER CUROL,
Plaintiff - Appellant,
versus
ENERGY RESOURCES TECHNOLOGY INC; ET AL,
Defendants
AOP INDUSTRIES INC,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
Case No. 2:03-CV-3126
Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Appellant Roger Curol appeals the district court’s order
vacating a previous order that granted him leave to file an amended
complaint, the denial of his motion for reconsideration, and the
denial of his reservation of rights against AOP Industries, Inc.
(“AOP”). Because the district court did not abuse its discretion,
we AFFIRM.
I. BACKGROUND
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Curol sued Energy Resources Technology, Inc. (“ERT”) in
November 2003 after he was injured on an oil-field platform by a
ball valve in an oil pump. The complaint alleged that his injury
was caused by an “AOP two piece ball valve.” In September 2004,
six months after the expiration of the deadline for filing amended
pleadings in the scheduling order, the district court granted
Curol’s unopposed ex parte motion to file an amended complaint
adding AOP as a defendant.
The district court vacated its September order and
dismissed AOP as a party in November 2004, stating that “plaintiff
has failed to establish good cause for failing to comply with this
Court’s scheduling order.” The court denied Curol’s motion for
reconsideration in April 2005, and dismissed the action against ERT
without prejudice based on the parties’ impending settlement. In
its April order dismissing the case, the court stated that the
dismissal was without prejudice “to the right, upon good cause
shown, to reopen the action . . . if settlement is not consummated
within a reasonable time. The Court retains jurisdiction for all
purposes, including enforcing the settlement agreement entered into
by the parties.”
In May 2005, Curol and ERT filed a joint motion to
dismiss all claims with prejudice and with a reservation of rights
against AOP. In its June 1 order, the court granted the joint
motion to dismiss, but denied Curol’s reservation of rights against
AOP, noting that “AOP never became a party to this action and
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plaintiff has no right to proceed against AOP in this action.” The
court entered a final judgment on June 16, 2005. On June 23, 2005,
Curol filed his notice of appeal of the November 2004, April 2005,
and June 2005 orders.
II. DISCUSSION
AOP argues that this court lacks jurisdiction over the
appeal because Curol did not file his notice of appeal until June
23, 2005, more than thirty days after the April order from which
Curol appeals. See FED. R. APP. P. 4(a)(1)(A). AOP contends that
the April order was a final, appealable order because it “dismissed
all claims as to all remaining parties, subject to a right to re-
open the case, for good cause shown, if settlement was not
concluded within a reasonable time.” Curol responds that the April
order conditioned dismissal upon settlement, allowing him a
reasonable time in which to file his notice of appeal.
We have jurisdiction to hear appeals only from final
decisions of the district courts. 28 U.S.C. § 1291; Marshall v.
Kansas City S. R.R. Co., 378 F.3d 495, 499 (5th Cir. 2004). “This
‘final judgment rule’ creates appellate jurisdiction only after a
decision that ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.”
Id. (internal
quotation marks omitted); see also Kelly v. Moore,
376 F.3d 481,
483 (5th Cir. 2004). The district court must decide all claims and
issues before it, and the “intention of the judge is crucial in
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determining finality.” McLaughlin v. Miss. Power Co., 376 F.3d
344, 350 (5th Cir. 2004).
The April order was not a final, appealable order because
it conditioned dismissal upon settlement within a reasonable time,
and the district court had not decided all issues before it. The
district court “did not evince an intent to end the litigation by
its [April] order,” id. at 351, because it conditioned dismissal
upon settlement, retaining jurisdiction over the case for a
reasonable time. Since a “reasonable time” is not self-executing,
the district court retained jurisdiction over the case, and the
litigation continued after the April order.
Accordingly, the time for filing a notice of appeal did
not begin until after the district court issued its final judgment
on June 16. Thus, Curol’s June 23 notice of appeal was timely, and
we have jurisdiction over the appeal. See, e.g., Williams v. Brown
& Root, Inc., 828 F.2d 325, 327-28 (5th Cir. 1987). Jurisdiction
over the appeal includes our ability to review the court’s orders
leading up to final judgment. Cook v. Powell Buick, Inc.,
155 F.3d
758, 761 (5th Cir. 1998); Exxon Corp. v. St. Paul Fire & Marine
Ins. Co.,
129 F.3d 781, 784 (5th Cir. 1997). We now turn to the
merits of Curol’s appeal.
First, Curol contends that the district court erred in
vacating the September order that allowed him to amend his
complaint to add AOP as a party. The district court did not abuse
its discretion in vacating its previous order because Curol did not
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have good cause to modify the scheduling order. See S & W Enter.,
L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 536 (5th
Cir. 2003); see also FED. R. CIV. P. 16(b). Curol cannot show good
cause to modify the scheduling order because he was obviously aware
of AOP’s role as a potential defendant when he stated in the
original complaint that his injury was caused by an “AOP two piece
ball valve.”
Second, Curol argues that the district court erred in
denying his motion for reconsideration; however, he has failed to
show that the “denial was so unwarranted as to constitute an abuse
of discretion.” Brown & Root, 828 F.2d at 328.
Third, Curol contends that the district court erred in
denying his request to reserve rights against AOP. The district
court did not abuse its discretion because AOP never became a party
to the action, and Curol had no right to proceed against AOP in the
case.
AFFIRMED.
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