Opinion
CIVIL ACTION NO 06-0288-KD-C.
May 21, 2009
ORDER
In September 2006, this action was stayed on the defendants' motion (doc. 25). The last status report was received May 18, 2009 (doc. 42). The parties report that the case has now been tried and on May 7, 2009, the Circuit Court of Clarke County, Alabama entered judgment on the jury verdicts in favor of Rolison Trucking Co., LLC, Gail Rolison, and Ronny P. Johnson and against Norfolk Southern Railway Company.
Accordingly, the parties are ORDERED to show cause on or before May 29, 2009 why the stay should not be lifted and this case dismissed. See Cashion v Torbert, 881 So. 2d 408, 414-415 (Ala. 2003) (explaining that an order is final for purposes of res judicata or estoppel even though an appeal is pending) (quotingAlabama Power Co. v. Thompson, 250 Ala. 7, 12, 32 So.2d 795, 800 (1947) ("In this jurisdiction a judgment will operate as res judicata or as estoppel notwithstanding an appeal when the appellate court action is based on a review of the record made below.")) (citations omitted); see also O'Dell v. Doychak, 2009 WL 1211356, 1 (M.D. 2009) ("During the stay, the state court adjudicated the exact rights which O'Dell asked this Court to adjudicate in his original federal action filed in 2006. [] Thus, the original controversy was fully resolved in state court, and dismissal of the federal action is now appropriate.") (citation omitted)
A hearing on this matter is scheduled for June 18, 2009 at 2:00 p.m. before the undersigned in Courtroom 5A of the United States District Court, 113 St. Joseph St., Mobile, Alabama 36602.