Bill D. Alcius, et al v. Joshua Grontenhuis, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13677
Non-Argument Calendar
____________________
BILL D. ALCIUS,
RICARDO FLORESTAL,
an individual,
Plaintiffs-Appellants,
versus
JOSHUA GRONTENHUIS,
individually,
RYAN RILLO,
individually,
BRYAN KALISH,
individually,
DANIEL MCEVOY,
individually,
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2 Opinion of the Court 23-13677
THOMAS MCGUIRE, et al.,
individually,
Defendants-Appellees,
PAUL SCHEEL,
individually,
Defendant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:22-cv-60386-CMA
____________________
Before JILL PRYOR, BRANCH and LAGOA, Circuit Judges.
PER CURIAM:
This appeal is DISMISSED, sua sponte, for lack of jurisdic-
tion. Bill D. Alcius and Ricardo Florestal appeal from the district
court’s October 4, 2023, judgment. However, that order is neither
final nor appealable because claims remain pending against one de-
fendant.
The plaintiffs filed a complaint against police officers Joshua
Grotenhuis, Ryan Rillo, Bryan Kalish, Daniel McEvoy, Thomas
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23-13677 Opinion of the Court 3
McGuire, Paul Scheel, and Raul Toledo, alleging unlawful arrest
and excessive force. The defendants answered the complaint
jointly. The plaintiffs filed a stipulation of voluntary dismissal as to
Scheel, and the district court dismissed all claims against Kalish at
the summary judgment stage.
The jury rendered a verdict finding Grotenhuis, Rillo,
McEvoy, McGuire, and Toledo not liable to the plaintiffs and, on
October 4, 2023, the district court entered judgment in favor of the
defendants and ordered the case closed. The plaintiffs filed a mo-
tion for a new trial and, shortly thereafter, filed a notice of appeal
from the judgment, reserving the right to amend the notice of ap-
peal after the disposition of the motion for a new trial. On Decem-
ber 1, 2023, the district court denied the plaintiffs’ motion for a new
trial, but the plaintiffs did not amend the original notice of appeal.
Because Scheel answered the plaintiffs’ complaint, he could
not be dismissed from the action by notice but required dismissal
via a stipulation that complied with Federal Rule of Civil Procedure
41(a)(1)(A)(ii). See Fed. R. Civ. P. 41(a)(1)(A). However, the plain-
tiffs’ stipulation of dismissal as to Scheel was defective because it
was not signed by all parties that appeared in the action—it was
signed by only counsel for the plaintiffs. See id., R. 41(a)(1)(A)(ii);
City of Jacksonville v. Jacksonville Hosp. Holdings, L.P., 82 F.4th 1031,
1034, 1038 (11th Cir. 2023). Furthermore, the district court did not
render the defective Rule 41(a)(1)(A)(ii) stipulation effective under
Rule 41(a)(2) by entering an order setting forth the terms of the
dismissal, or otherwise act to dismiss Scheel. See Fed. R. Civ. P.
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4 Opinion of the Court 23-13677
41(a)(2); Sanchez v. Disc. Rock & Sand, Inc., 84 F.4th 1283, 1287 (11th
Cir. 2023); Pontenberg v. Bos. Sci. Corp., 252 F.3d 1253, 1256 n.1 (11th
Cir. 2001). Finally, the plaintiffs did not seek to eliminate the claims
against Scheel by amending the complaint pursuant to Rule 15(a).
See Fed. R. Civ. P. 15(a); Klay v. United Healthgroup, Inc., 376 F.3d 1092,
1106 (11th Cir. 2004). Therefore, Scheel was not dismissed from
the action.
The verdict and October 4, 2023, judgment in favor of
Grotenhuis, Rillo, McEvoy, McGuire, and Toledo did not fully re-
solve the action because the claims against Scheel remain pending.
See World Fuel Corp. v. Geithner, 568 F.3d 1345, 1348 (11th Cir. 2009);
Martinez v. Carnival Corp., 744 F.3d 1240, 1243-44 (11th Cir. 2014).
The district court’s December 1, 2023, order denying plaintiffs a
new trial also did not address or resolve the claims against Scheel.
Additionally, the district court did not certify the October 4, 2023,
judgement for immediate review pursuant to Rule 54(b). See Fed.
R. Civ. P. 54(b); Supreme Fuels Trading FZE v. Sargeant, 689 F.3d 1244,
1246 (11th Cir. 2012). Accordingly, the plaintiffs’ November 2, 2023,
notice of appeal challenging the October 4, 2023, judgment is not
final or immediately appealable and cannot invoke our jurisdiction.
See 28 U.S.C. § 1291.
All pending motions are DENIED as moot. No petition for
rehearing may be filed unless it complies with the timing and other
requirements of 11th Cir. R. 40-3 and all other applicable rules.
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