                                                                 [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                   FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             DEC 15, 2000
                                 No. 99-12799             THOMAS K. KAHN
                                                               CLERK

                       D. C. Docket No. 98-00223-CV-4

CSX TRANSPORTATION, INC.,
NATIONAL RAILROAD PASSENGER CORPORATION,

                                                       Plaintiffs-Appellants,
                                    versus

THE CITY OF GARDEN CITY,

                                                       Defendant-Third-Party,
                                                       Plaintiff-Appellee,
ARCO, INC.,
                                                       Third-Party Defendant.



                  Appeal from the United States District Court
                     for the Southern District of Georgia


                            ( December 15, 2000 )



Before ANDERSON, Chief Judge, DUBINA and HILL, Circuit Judges.

HILL, Circuit Judge:
      CSX Transportation, Inc. and the National Railroad Passenger Corporation

filed this action against the City of Garden City, Georgia seeking indemnification

in connection with a train/truck collision on the city’s construction site. The

district court entered summary judgment for the defendant city based upon

municipal immunity. CSX Transportation, Inc. and the National Railroad

Passenger Corporation bring this appeal.

                                           I.

       In 1996, the City of Garden City, Georgia (Garden City or the City) decided

to install water and sewer lines along the public rights-of-way that ran across,

under, and parallel to CSX Transportation, Inc.’s (CSX) railroad tracks. The City

contracted with CSX to use CSX’s rights-of-ways and agreed to indemnify CSX

for any damages arising out of the City’s use of the rights-of-way. Under the

contract, the City agreed to maintain insurance to cover the indemnity obligations

it had assumed.

      Garden City employed ARCO, Inc. as the general contractor for this project

which employed CARLCO Trucking, Inc.as a sub-contractor. On October 9, 1997,

a CARLCO employee drove a tractor-trailer truck to the City’s work site to remove

equipment. As he crossed CSX’s tracks, his truck stalled on the tracks where it

was hit by a National Railroad Passenger Corporation (Amtrak) passenger train.

                                           2
CSX paid damages to passengers on the train and sued Garden City for

indemnification under their agreement. Garden City filed a third-party claim

against its contractor, ARCO.

         Sometime later, the City filed a motion for summary judgment against CSX,

asserting that it was immune to CSX’s claim for damages for a number of reasons.

The district court agreed with the City1 and, on July 12, 1999, granted it summary

judgment. The court noted, however, that Garden City’s third-party complaint

against ARCO for indemnification was still pending and “the Clerk should not

close this case.” Subsequently, Garden City with the consent of ARCO and

approval of the court, voluntarily dismissed without prejudice its third-party claim

against ARCO. CSX and Amtrak filed this appeal.

         Concerned about the finality of the summary judgment, this court, on its

own motion, directed the parties to brief and argue the issue of our jurisdiction to

hear this case.

                                                         II.

         To be appealable, an order must either be final or fall into a specific class of

interlocutory orders that are made appealable by statute or jurisprudential

exception. See 28 U.S.C. §§ 1291, 1292; Atlantic Fed. Sav. & Loan Ass’n v.


1
 Although for a different reason, as we discuss later.

                                                         3
Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 375-76 (11th Cir. 1989). A

final decision is “‘one which ends the litigation on the merits and leaves nothing

for the court to do but execute the judgment.’” Pitney Bowes, Inc. v. Mestre, 701

F.2d 1365, 1368 (11th Cir. 1983) (quoting Catlin v. United States, 324 U.S. 229,

233 (1945)). A judgment that does not effectively terminate the litigation is not

final or immediately appealable unless the district court certifies the judgment for

immediate appeal under Fed.R.Civ.P. 54(b). See 28 U.S.C. § 1291; Williams v.

Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984); In re Yarn Processing Patent

Validity Litigation, 680 F.2d 1338, 1339-40 (11th Cir. 1982).

      We have held many times that a partial adjudication on the merits, followed

by a voluntary dismissal without prejudice of a pending claim, does not effectively

terminate the litigation and, therefore, does not satisfy the finality requirement of

28 U.S.C. § 1291. Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 302-03 (5th

Cir. 1977). See also State Treasurer v. Barry, 168 F.3d 8, 11-13 (11th Cir. 1999);

Construction Aggregates, Ltd. v. Forest Commodities Corp., 147 F.3d 1334, 1336-

37 (11th Cir. 1998); Mesa v. United States, 61 F.3d 20 (11th Cir. 1995). That is

what happened in this case. The district court’s July 12 entry of summary

judgment was a partial adjudication on the merits. It was followed by the

voluntary dismissal without prejudice of the remaining pending claim – Garden

                                           4
City’s third-party claim against ARCO. Therefore, if Ryan applies, this series of

events did not terminate the litigation. 577 F.2d at 302-03 (summary judgment

plus a voluntary dismissal without prejudice of a remaining claim does not

effectively terminate litigation).

      As a threshold matter, then, there does not appear to be a final, appealable

order in this case. Inasmuch as neither party had the court certify the July 12

summary judgment for appeal under Rule 54(b), we do not have jurisdiction to

hear this appeal unless there is some other reason why the judgment should be

considered final.

      CSX argues that we have jurisdiction under the Jetco exception to the

finality rule. Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231

(5th Cir. 1973). Under this exception, a series of court orders, considered together,

may be said to constitute a final judgment if they effectively terminate the

litigation. Id. In this case, the summary judgment plus the entry of the voluntary

dismissal effectively terminated this litigation, leaving nothing else for the district

court to do, which it recognized by closing the case. CSX argues that this series of

court orders may be considered a final judgment.

      Furthermore, CSX argues that this series of orders should be considered a

final judgment because if they are not, Garden City and ARCO will receive a

                                           5
windfall. If there is no final judgment, CSX will forever lose its right to appeal in

this case.2

         This result, CSX argues, is not required by Ryan and its progeny. The

common theme of these cases is that jurisdiction cannot be manufactured. For

example, when a district court enters an adverse, but otherwise non-appealable,

ruling against a party, that party may seek to appeal the ruling immediately by

dismissing without prejudice his remaining claims – sort of warehousing them for

later revival if needed – attempting to manufacture a final, appealable judgment.

We have consistently rejected such attempts to obtain appellate review of an

otherwise non-final order. See State Treasurer, 168 F.3d at 11-12, 16 (plaintiff and

defendant stipulated to the dismissal without prejudice of remaining counterclaim

and plaintiff sought to appeal); Construction Aggregates, 147 F.3d at 1335-36

(defendant dismissed remaining counterclaim without prejudice and then sought to

appeal); Mesa, 61 F.3d at 21 (plaintiff dismissed remaining claims without

prejudice and then sought to appeal); Ryan, 577 F.2d at 300 (plaintiff dismissed

remaining claims without prejudice and sought to appeal).




2
 CSX could ask the district court to certify the July 12 order and judgment as final under Fed.R.Civ.P. 54(b), but
there is no guarantee that the court will grant their request. See State Treasurer, 168 F.3d at 20 (Cox, J. specially
concurring) (the entry of judgment under 54(b) is not a matter of right and is committed to the sound discretion of
the district court).

                                                           6
      CSX points out that it is not guilty here of such an attempt to manufacture

jurisdiction. After the summary judgment, it had no remaining claims. Nor did it

participate in any way in Garden City and ARCO’s agreement to dismiss without

prejudice Garden City’s remaining third-party claim.

      This case is the mirror image of Ryan, where the parties attempted to

manufacture appealability. Here, Garden City and ARCO appear to have

undertaken to manufacture non-appealability. If there is no final appealable order

in the case, CSX will be deprived of any appellate review of the dismissal of its

lawsuit and will be left holding the proverbial (and unenviable) “bag.”

      We have noted this possibility before. In State Treasurer, we expressed

concern that under the Ryan rule, an appellant not involved in the decision to

dismiss a remaining claim without prejudice and, therefore, not guilty of

conspiring to create jurisdiction, would nonetheless lose his right to appeal. 168

F.3d at 21 (Cox, J., specially concurring). We said then that “[w]hatever the

wisdom of punishing crafty litigants, it is hard to justify punishing their victims.”

Id. CSX urges us to transform this concern into a new rule for this circuit.

      There is some authority for this result. In Schoenfeld v. Babbitt, 168 F.3d

1257, 1265-66 (11th Cir. 1999), we held that where the appellant had dismissed its

claims against a defendant without prejudice before the district court entered

                                           7
judgment for the remaining defendant, Ryan did not apply and that order was final

and appealable.

        In this case, however, the voluntary dismissal followed the entry of the non-

final order and, therefore, is asserted to come under the rule of Ryan. Even if the

rule is harsh, we are bound to follow it if it applies to this case. The issue is

whether it does apply.3 We conclude that it does not.

        In this case, a summary judgment was entered against the plaintiff. Then,

the defendant and the third-party defendant stipulated to the dismissal of the

remaining third-party claim. The plaintiff did not participate in any way in the

voluntary dismissal of the third-party claim. The defendant and third-party

defendant agreed to that disposition. As nothing remained pending in the lawsuit,

the district court ordered the Clerk to close the case. The plaintiff then filed a

notice of appeal of the judgment which had been entered against it prior to the

voluntary dismissal.

        Under these circumstances, the rule of Ryan is inapplicable. Because the

appellant did not participate in the voluntary dismissal of the remaining claims,

there was no collusion between it and the parties dismissing the remaining claim.



3
 Garden City concedes that whether the rule of Ryan applies to render voluntary dismissals of third-party claims non-
final is an issue of first impression in this circuit.

                                                         8
Therefore, there was no attempt to manufacture jurisdiction. On the contrary, the

plaintiff/appellant stands to lose all right to appeal if the rule of Ryan applies under

these circumstances. Additionally, in the future, parties could deliberately

manipulate the proceedings to make the rule of Ryan apply to cut off their

adversary’s right to appeal.4

         We conclude that Ryan was not intended to apply to the circumstances of

this case. The voluntary dismissal, with or without prejudice, of a defendant’s

remaining third-party claim in an otherwise terminated lawsuit does not bar the

plaintiff’s right to appeal a judgment against it. Under these circumstances, the

summary judgment plus the voluntary dismissal of the remaining claim in the case

satisfies the finality requirement of Rule 54(b) for the purpose of terminating the

litigation. See Jetco, 473 F.2d at 1231.

         CSX was not involved in any way in the voluntary dismissal of Garden

City’s remaining third-party claim against ARCO. Accordingly, Garden City’s

voluntary dismissal of its third-party claim against ARCO effectively terminated




4
 In State Treasurer, Judge Cox hypothesized just such a possibility: a plaintiff who seeks to cut off her opponent’s
right to appeal, files a meritless claim along with her valid one. Before the court can rule on her claims, she
voluntarily dismisses the meritless claim. After judgment in her favor, her opponent is left with no right to appeal
because, under Ryan, the voluntary dismissal is not a final order. 168 F.3d at 21. This scenario has, fortunately,
been forestalled by our decision in Babbitt, 168 F.3d at 1266.

                                                          9
this case in the district court.5 Accordingly, we conclude that Ryan does not apply

to this case. Nor shall we extend it to apply to this case. We have jurisdiction over

this appeal.

                                                          III.

         The indemnification contract between CSX and Garden City provided that

the City would assume liability for all claims arising out of its construction in

CSX’s rights-of-way. It, in effect, required the City to waive its sovereign

immunity vis-a-vis CSX in connection with any claims against CSX arising out of

the City’s construction project.

         Georgia law, however, forbids a city from waiving its sovereign immunity

unless it has insurance to fund any liability it might thereby incur.6 The relevant

statute provides:

         [a] municipal corporation shall not waive its immunity by the
         purchase of liability insurance . . . unless the policy of insurance
         issued covers an occurrence for which the defense of sovereign
         immunity is available, and then only to the extent of the limits of such
         insurance policy.

O.C.G.A. § 36-33-1.

5
 Garden City argues that because it claimed indemnity including attorneys fees against ARCO, it may revive this
claim at any time since its dismissal was without prejudice. We express no opinion on that issue, but note that if the
City is correct, then it holds the key to the presently locked door to CSX’s appeal even more firmly in its grip since it
can resurrect that right by reviving and prosecuting its claim for fees to judgment.


6
 Otherwise, the taxpayers of the city would have to foot the bill.

                                                          10
         The district court concluded, therefore, that “the indemnification agreement

here is barred by municipal immunity – except to the extent that the City obtained

insurance to cover it.” Because CSX made no showing in the district court that

Garden City procured or had any such insurance,7 the district court held that its

agreement to indemnify CSX was ultra vires and null and void. See Precise v. City

of Rossville, 261 Ga. 210, 403 S.E.2d 47(1991).

         While on appeal, CSX moved to supplement the record in this case to show

that Garden City participates in the Georgia Interlocal Risk Management Agency

(GIRMA) fund which provides it coverage up to $1,000,000 against “all sums

which [Garden City] shall be obligated to pay as money damages by reason of

liability imposed upon [Garden City] by law or assumed by [Garden City] under

contract or agreement.” CSX argued in its motion that the grant of summary

judgment was in error because the City does have the requisite insurance to enable

it effectively to waive its sovereign immunity. A panel of this court denied the

motion. CSX renewed this motion on appeal in its brief and at oral argument.

         We rarely enlarge the record on appeal to include material not before the

district court which has labored without the benefit of the proffered material. See

7
 CSX never produced any evidence to counter the City’s claim that it never “purchased” the necessary insurance,
and the district court held that this fact was established under S.D.Ga. Local Rule 56.1. The City did not, however,
deny that it “had” insurance which might cover this claim. In fact, they identified the “insurance policy” offered
now by CSX in response to an interrogatory asking for any policy which might cover the claim.

                                                         11
Hormel v. Helvering, 312 U.S. 552, 556 (1941); Kemlon Products & Dev. Co. v.

United States, 646 F.2d 223, 224 (5th Cir. 1981).     We do, however, have the

inherent equitable power to allow supplementation of the appellate record if it is in

the interests of justice. Young v. City of Augusta ex rel DeVaney, 59 F.3d 1160,

1168 (11th Cir. 1995). This is a matter left to our discretion. Dickerson v.

Alabama, 667 F.2d 1364, 1367 (11th Cir. 1982). We decide on a case-by-case

basis whether a particular appellate record should be supplemented. Ross v. Kemp,

785 F.2d 1467, 1474-75 (11th Cir. 1986).

      A primary factor which we consider in deciding a motion to supplement the

record is whether acceptance of the proffered material into the record would

establish beyond any doubt the proper resolution of the pending issues. Dickerson,

667 F.2d at 1367. In this case, the district court held that the City’s failure to

procure insurance rendered its agreement to indemnify CSX null and void. The

existence or non-existence of insurance, then, was pivotal to the district court’s

resolution of this case. Under these circumstances, we are persuaded that

supplementation of the record on this issue is in the interests of justice. See

Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1555 (11th Cir. 1989) (a

consideration of all the relevant information is necessary to make an informed and

final decision).

                                           12
        Garden City objects to this supplementation on the grounds that CSX knew

of the GIRMA coverage prior to the entry of summary judgment and could have

introduced it into the record in opposition to the City’s motion for summary

judgment. The City, however, never argued to the district court that its contract to

indemnify CSX was void because it had not honored its agreement to procure the

requisite insurance. In its motion for summary judgment, the City cited a host of

reasons why its agreement to indemnify CSX was void, but lack of insurance was

not one of them.8

        The district court’s opinion, which found the lack of insurance fatal to the

agreement, was the first time the issue was clearly raised. Relying on an affidavit

by a former mayor who stated that Garden City “did not appropriate any monies to

fund the City’s indemnification obligation,” the trial court concluded that no

insurance existed to cover the City’s potential liability to CSX. Summary

judgment was entered on July 12, 1999. CSX appealed on August 6, 1999, and

filed the motion to supplement the record on September 23, 1999.




8
 The City argued that the indemnity agreement was void because it: unlawfully waives the City’s municipal
immunity; creates an unlawfully lengthy obligation of Garden City; creates an unlawful public debt; impermissibly
grants a gratuity; and violates public policy. Since we shall remand this case for reconsideration of the issue of
immunity in view of the existence of the GIRMA policy, we shall not consider the issues of unlawful obligation and
public debt as they may depend on the existence of insurance coverage. We find no merit in the remaining
arguments advanced by the City.

                                                        13
      While we rarely exercise our authority to enlarge the appellate record, the

Supreme Court has reminded the appellate courts that:

      [T]he rules of practice and procedure are devised to promote the ends
      of justice, not to defeat them. A rigid and undeviating judicially
      declared practice under which courts of review would invariably and
      under all circumstances decline to consider all questions which had
      not previously been specifically urged would be out of harmony with
      this policy. Orderly rules of procedure do not require sacrifice of the
      rules of fundamental justice.

Hormel, 312 U.S. at 721.

      Under the circumstances of this case, we conclude that the motion to

supplement the record should be granted. Since the district court never had the

opportunity to consider what effect, if any, the City’s participation in the GIRMA

fund has on the City’s indemnification agreement with CSX, we shall remand the

case to the district court so that it may consider this fact before determining

whether Garden City effectively waived its immunity by its agreement to

indemnify CSX. We express no opinion on the outcome of that review.

                                          IV.

      We hold that the summary judgment and the voluntary dismissal considered

together effectively terminated this litigation in the district court, and we have

jurisdiction over this appeal. We hold that CSX’s motion to supplement the record

on appeal is due to be granted. Accordingly, the motion to supplement the record

                                          14
is GRANTED, the entry of summary judgment is VACATED and the case is

REMANDED to the district court for proceedings consistent with this opinion.




                                       15
