October 8, 2013
SHAD WADDELL, Plaintiff and Appellant,
DARYL MILLER, Individually and as President of the Belgrade Lounge & Casino, Inc.; BELGRADE LOUNGE & CASINO, INC., d/b/a Belgrade Lounge; BELGRADE LOUNGE, INC.; and MATT WAGEMANN; and John Does 1-5, Defendants and Appellees
Defendants and Appellees Daryl Miller and Belgrade Lounge & Casino, Inc., have moved to dismiss the appeal on the ground that the District Court has not adjudicated all claims as to all parties, and thus has not entered a final judgment. The District Court granted summary judgment to these two defendants on July 15, 2013 ("all of [Plaintiff Shad] WaddelPs claims are barred for his failure to properly notify Belgrade Lounge and Miller of his intent to file this action."). Appellees' motion indicates that an order certifying this summary judgment order as final pursuant to M. R. Civ. P. 54(b) has not been entered. The motion explains that Defendant Belgrade Lounge, Inc., filed a bankruptcy petition shortly after this litigation commenced, and the District Court stayed the action as to that defendant. Defendant Matt Wagemann was never served and has not participated in the litigation.
In his response to the motion, Plaintiff and Appellant Shad Waddell advises that, following issuance of an order by the United States Bankruptcy Court dismissing the bankruptcy petition of Defendant Belgrade Lounge, Inc., that the District Court recently issued an order lifting the stay of this litigation as to that defendant. Waddell further advises that, since the filing of Appellees' motion to dismiss this appeal, he has moved the District Court for dismissal of Belgrade Lounge, Inc., from the litigation and the District Court has entered an order of dismissal. Waddell's motion confirms that Defendant Matt Wagemann was never served and is not a party to this litigation, and argues that the motion to dismiss has now been rendered moot.
It appears from these pleadings that all of Waddell's claims against the defendants remaining in this litigation were resolved by the summary judgment order entered July 15, 2013. However, it is not known whether the District Court has yet entered a final judgment to confirm this status of the case. The District Court may do so pursuant to M. R. App. P. 4(5)(a)(ii), and the appeal may proceed thereafter.
IT IS HEREBY ORDERED that the motion to dismiss is DENIED without prejudice.
The Clerk is directed to mail a copy hereof to counsel of record and to the Honorable Mike Salvagni, District Judge.