10-1029 Kimbrell v. Brown

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Civil Procedure
Appeal; final judgment

When one defendant files for bankruptcy, the plaintiff should ask the court to enter a final judgment against the solvent defendant, despite the stay against the insolvent defendant.

“We note that in Robison v. Canterbury Village, Inc., 848 F.2d 424 (3d Cir. 1988), a similar case involving two defendants, one of whom filed for bankruptcy, the district court issued a certification under Rule 54(b) of the Federal Rules of Civil Procedure that its dismissal of the claims against the noninsolvent defendant constituted a final judgment despite the pending stay against the insolvent defendant. This enabled the plaintiff to appeal the dismissal as to the noninsolvent defendant. Id. at 426-27; see also Arrow Gear, 629 F.3d at 636 (‘Arrow could have asked the judge to enter a final judgment under Rule 54(b) . . . , which permits a district judge, upon finding no “just reason” to delay an appeal, to enter a final judgment—which is then appealable under section 1291—with respect to one or more, but fewer than all, claims or parties. But the judge was not asked to enter a Rule 54(b) judgment and did not.’). Kimbrell made no attempt to obtain a Rule 54(b) certification from Judge Gilbert in this case.”
Dismissed.

10-1029 Kimbrell v. Brown

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Sykes, J.

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