Opinion
NO. 4:12-CV-00090-DMB-JMV
02-09-2016
ALLSTATE PROPERTY CASUALTY INSURANCE COMPANY PLAINTIFF v. JOYCE HUNTER, et al. DEFENDANTS
ORDER OF DISMISSAL WITH PREJUDICE
On December 10, 2014, this Court, acting on a stipulation of dismissal submitted by all parties, entered a final judgment dismissing this action without prejudice. Doc. #53. On February 8, 2016, after more than a year of inactivity, the parties filed an Agreed Stipulation of Dismissal with Prejudice. Doc. #55. The Court interprets this second stipulation as a Rule 60(b) motion for relief from a final judgment. See Kozak v. Fedex Kinko's, Inc., No. 3:07-cv-187, 2008 WL 682580, at *1 (E.D. Va. Mar. 7, 2008) (district court has discretion to convert dismissal without prejudice to a dismissal with prejudice pursuant to Rule 60(b)); see also Campbell v. Assurance Co. of Am., No. 3:11-cv-83, 2012 WL 1583306, at *2 (M.D. Ga. May 1, 2012) (altering Rule 41(b) dismissal pursuant to Rule 60(b)).
Rule 60(b)(6) of the Federal Rules of Civil Procedure grants a court authority to "relieve a party ... from a final judgment [for] any ... reason that justifies relief." Upon consideration, the Court concludes that the parties' joint request to convert the dismissal without prejudice to a dismissal with prejudice justifies relief under Rule 60(b)(6). See generally McCall-Bey v. Franzen, 777 F.2d 1178, 1185 (7th Cir. 1985) ("So the dismissal was without prejudice - though of course one or more of the parties can still request the district court under Rule 60(b) ... to correct the judgment to make it with prejudice ...."). Accordingly, the Final Judgment entered on December 10, 2014, Doc. #53, is set aside and this matter is now DISMISSED with prejudice.
The Court notes that, unlike Franzen, the parties are seeking relief from a final judgment, not correction. There is no question that the initial judgment without prejudice was properly entered.
SO ORDERED, this 9th day of February, 2016.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE