                                                                [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-12813               FILED
                                        Non-Argument Calendar U.S. COURT  OF APPEALS
                                      ________________________ ELEVENTH CIRCUIT
                                                               NOVEMBER 4, 2011
                            D.C. Docket No. 8:10-cv-02606-JSM-AEP JOHN LEY
                                                                   CLERK



TIMOTHY R. MYERS,

llllllllllllllllllllllllllllllllllllllll                            Plaintiff - Appellant,

                                                versus

MO & COMPANY, INC.,
a Florida corporation,
d.b.a. Tops Barber Shop,
BULLARD PARKWAY PROPERTIES, LLC,
a Florida limited liability company,

llllllllllllllllllllllllllllllllllllllll                         Defendants - Appellees.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (November 4, 2011)
Before CARNES, WILSON, and BLACK, Circuit Judges.

PER CURIAM:

      Timothy Myers appeals a district court order reducing the amount of

attorney’s fees stipulated in a settlement agreement resolving his Americans with

Disabilities Act claim against MO & Company, Inc. Myers contends that the

district court lacked jurisdiction to alter the private settlement agreement.

                                          I.

      Myers, who uses a wheelchair, sued MO & Company, alleging that its

barbershop was in violation of the ADA. Myers sought declaratory and injunctive

relief to order MO & Company to make its facilities accessible and usable by

persons with disabilities.

      During the discovery phase the parties reached a confidential settlement

agreement. MO & Company agreed to make certain alterations to the barbershop

in exchange for Myers dropping his lawsuit. MO & Company also agreed to pay

Myers $8,600 in attorney’s fees and $400 in court costs.

      The parties filed a joint stipulation for dismissal with prejudice under

Federal Rule of Civil Procedure 41(a)(1)(ii). The district court dismissed the case,

in accordance with its local rule, M.D. Fla. R. 3.08, without prejudice “subject to

the right of the parties,” within 60 days, to submit a stipulated form of final order

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or judgment, if they chose to do so, or to move “to reopen the action, upon good

cause.” (emphasis omitted). The dismissal would be with prejudice following that

60-day period. The district court, however, did something beyond the scope of its

local rule. It expressly retained jurisdiction “during and after” the 60-day period

“to determine the reasonableness of [Myers’] attorney’s fees and costs.” The

district court also prohibited payments of fees or costs without its consent.

      Two months later Myers’ attorney submitted an affidavit detailing his fees.

The district court then entered an order reducing the attorney’s fees award to

$5,450 and ruled that Myers was not entitled to reimbursement for his personal

expenses. The district court then dismissed the case with prejudice. Myers’

appeal followed.

                                          II.

      We review de novo a district court’s subject matter jurisdiction. Adventure

Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008). “We also

review de novo the district court’s interpretation of federal procedural rules.”

United States v. Elmes, 532 F.3d 1138, 1141 (11th Cir. 2008).

      Federal Rule of Civil Procedure 41(a)(1)(ii) provides: “[T]he plaintiff may

dismiss an action without a court order by filing . . . a stipulation of dismissal

signed by all parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(ii). The

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Supreme Court has stated that Federal Rule of Civil Procedure 41(a)(1) “does not

by its terms empower a district court to attach conditions to the parties’ stipulation

of dismissal.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381–82,

114 S.Ct. 1673, 1677 (1994). The Supreme Court held in Kokkonen that the

district court did not have subject matter jurisdiction to enforce a settlement

agreement after a Rule 41(a)(1)(ii) dismissal with prejudice. Id. A district court

may retain jurisdiction over the settlement, however, if the court “embod[ies] the

settlement contract in its dismissal order (or, what has the same effect, retain[s]

jurisdiction over the settlement contract) if the parties agree.” Id. (emphasis

added). This Court has interpreted Kokkonen as follows: “[I]f the district court

either incorporates the terms of a settlement into its final order of dismissal or

expressly retains jurisdiction to enforce a settlement, it may thereafter enforce the

terms of the parties’ agreement.” Am. Disability Ass’n v. Chmielarz, 289 F.3d

1315, 1320 (11th Cir. 2002).

      The district court’s dismissal order in the present case did not incorporate

the settlement or even mention it. Nor did the district court retain jurisdiction to

enforce the settlement agreement. The district court purported to retain

jurisdiction only to modify the agreement. It was without the authority to do so,

especially because neither Myers nor MO & Company agreed to the district

                                           4
court’s authority over the settlement. See Kokkonen, 511 U.S. at 381–82, 114

S.Ct. at 1677. The district court thus had no subject matter jurisdiction when it

ordered the reduction of Myers’ attorney’s fees and costs.

      VACATED AND REMANDED with instructions to dismiss with

prejudice.




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