TransWorld Food Service, LLC, et al. v. Nationwide Mutual Insurance Company

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11444
Non-Argument Calendar
____________________
TRANSWORLD FOOD SERVICE, LLC,
a.k.a. Trans World Foods,
EMILIA FOODS, LLC,
Plaintiffs-Appellants,
versus
NATIONWIDE MUTUAL INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
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2 Opinion of the Court 23-11444
D.C. Docket No. 1:19-cv-03772-SDG
____________________
Before BRANCH, LUCK, and ABUDU, Circuit Judges.
PER CURIAM:
Upon review of the record and the response to the jurisdic-
tional question, we conclude that we lack jurisdiction over this ap-
peal. TransWorld Food Service, LLC (“TransWorld Foods”) and
Emilia Foods, LLC appeal the district court’s March 2022 order
granting in part and denying in part defendant Nationwide Mutual
Insurance Company’s (“Nationwide”) motion for summary judg-
ment; the district court’s July 18, 2022 judgment; and the district
court’s March 2023 order denying their motion to alter or amend
the judgment.
TransWorld Foods and Emilia Foods initially asserted 11
claims against Nationwide related to its denial of various insurance
claims. In March 2022, the district court granted Nationwide sum-
mary judgment on counts 1, 2, 3, 4, 7, and 8. Following a trial, the
jury rendered a verdict resolving counts 9 through 11. On August
4, 2022, after judgment was entered, the parties filed a joint stipu-
lation of dismissal regarding the remaining two counts, counts 5
and 6. The district court took no action in response to the parties’
joint stipulation.
The parties’ joint stipulation of dismissal was invalid and did
not serve to resolve the two remaining claims because it was an
attempt to dismiss fewer than all of a party’s claims against another
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23-11444 Opinion of the Court 3
party. See Rosell v. VMSB, LLC, 67 F.4th 1141, 1143-44 (11th Cir.
2023) (holding that there was no final decision in the action because
the parties’ attempt to dismiss a single count under Federal Rule of
Civil Procedure 41(a) was ineffective); Perry v. Schumacher Grp. of
La., 891 F.3d 954, 958 (11th Cir. 2018) (holding that Rule 41(a)(1)(A)
“may be used to dismiss only an ‘action’ in its entirety,” and that a
stipulation which purports to dismiss a single claim in an action is
invalid); see also Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106
(11th Cir. 2004) (recognizing an exception under Rule 41(a) that
“allows a plaintiff to dismiss all of his claims against a particular
defendant”).
Additionally, while the parties’ joint stipulation could be
construed as a motion to amend the pleadings under Federal Rule
of Civil Procedure 15, because the district court never took any ac-
tion in response to it, the claims were not resolved. See Klay, 376
F.3d at 1106 (noting that an ineffective dismissal of claims under
Rule 41(a) could be construed as a motion to amend the pleadings
under Rule 15); Fed. R. Civ. P. 15(a)(2). Further, the district court
did not certify its judgment or orders under Federal Rule of Civil
Procedure 54(b). See Supreme Fuels Trading FZE v. Sargeant, 689 F.3d
1244, 1246 (11th Cir. 2012) (noting that an order that disposes of
fewer than all claims against all parties to an action is not final or
immediately appealable absent certification by the district court
pursuant to Rule 54(b)).
Therefore, the district court proceedings are not final, and
we lack jurisdiction to consider this appeal. See 28 U.S.C. § 1291
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4 Opinion of the Court 23-11444
(providing jurisdiction to review only “final decisions of the district
courts”); Acheron Cap., Ltd. v. Mukamal, 22 F.4th 979, 986 (11th Cir.
2022) (“A final decision is typically one that ends the litigation on
the merits and leaves nothing for the court to do but execute its
judgment.”).
Accordingly, this appeal is DISMISSED for lack of jurisdic-
tion.
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