                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                      October 27, 2006

                                                               Charles R. Fulbruge III
                               No. 05-30669                            Clerk


                               ROGER CUROL,

                                                  Plaintiff - Appellant,

                                   versus

               ENERGY RESOURCES TECHNOLOGY INC; ET AL,

                                                               Defendants

                           AOP INDUSTRIES INC,

                                                    Defendant - Appellee.



             Appeal from the United States District Court
                 for the Eastern District of Louisiana
                         Case No. 2:03-CV-3126


Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.

PER CURIAM:*

           Appellant Roger Curol appeals the district court’s order

vacating a previous order that granted him leave to file an amended

complaint, the denial of his motion for reconsideration, and the

denial of his reservation of rights against AOP Industries, Inc.

(“AOP”).   Because the district court did not abuse its discretion,

we AFFIRM.

                              I.   BACKGROUND



     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
          Curol sued Energy Resources Technology, Inc. (“ERT”) in

November 2003 after he was injured on an oil-field platform by a

ball valve in an oil pump.    The complaint alleged that his injury

was caused by an “AOP two piece ball valve.”         In September 2004,

six months after the expiration of the deadline for filing amended

pleadings in the scheduling order, the district court granted

Curol’s unopposed ex parte motion to file an amended complaint

adding AOP as a defendant.

          The   district   court   vacated   its   September   order   and

dismissed AOP as a party in November 2004, stating that “plaintiff

has failed to establish good cause for failing to comply with this

Court’s scheduling order.”     The court denied Curol’s motion for

reconsideration in April 2005, and dismissed the action against ERT

without prejudice based on the parties’ impending settlement.           In

its April order dismissing the case, the court stated that the

dismissal was without prejudice “to the right, upon good cause

shown, to reopen the action . . . if settlement is not consummated

within a reasonable time.    The Court retains jurisdiction for all

purposes, including enforcing the settlement agreement entered into

by the parties.”

          In May 2005, Curol and ERT filed a joint motion to

dismiss all claims with prejudice and with a reservation of rights

against AOP.    In its June 1 order, the court granted the joint

motion to dismiss, but denied Curol’s reservation of rights against

AOP, noting that “AOP never became a party to this action and

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plaintiff has no right to proceed against AOP in this action.”               The

court entered a final judgment on June 16, 2005.            On June 23, 2005,

Curol filed his notice of appeal of the November 2004, April 2005,

and June 2005 orders.

                                II.   DISCUSSION

              AOP argues that this court lacks jurisdiction over the

appeal because Curol did not file his notice of appeal until June

23, 2005, more than thirty days after the April order from which

Curol appeals.        See FED. R. APP. P. 4(a)(1)(A).       AOP contends that

the April order was a final, appealable order because it “dismissed

all claims as to all remaining parties, subject to a right to re-

open    the   case,    for   good   cause   shown,   if   settlement   was   not

concluded within a reasonable time.” Curol responds that the April

order    conditioned     dismissal     upon   settlement,    allowing   him   a

reasonable time in which to file his notice of appeal.

              We have jurisdiction to hear appeals only from final

decisions of the district courts.             28 U.S.C. § 1291; Marshall v.

Kansas City S. R.R. Co., 378 F.3d 495, 499 (5th Cir. 2004).              “This

‘final judgment rule’ creates appellate jurisdiction only after a

decision that ends the litigation on the merits and leaves nothing

for the court to do but execute the judgment.”                  Id. (internal

quotation marks omitted); see also Kelly v. Moore, 376 F.3d 481,

483 (5th Cir. 2004).         The district court must decide all claims and

issues before it, and the “intention of the judge is crucial in



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determining finality.”       McLaughlin v. Miss. Power Co., 376 F.3d

344, 350 (5th Cir. 2004).

           The April order was not a final, appealable order because

it conditioned dismissal upon settlement within a reasonable time,

and the district court had not decided all issues before it.               The

district court “did not evince an intent to end the litigation by

its [April] order,” id. at 351, because it conditioned dismissal

upon   settlement,   retaining   jurisdiction     over   the      case   for   a

reasonable time.     Since a “reasonable time” is not self-executing,

the district court retained jurisdiction over the case, and the

litigation continued after the April order.

           Accordingly, the time for filing a notice of appeal did

not begin until after the district court issued its final judgment

on June 16.   Thus, Curol’s June 23 notice of appeal was timely, and

we have jurisdiction over the appeal.        See, e.g., Williams v. Brown

& Root, Inc., 828 F.2d 325, 327-28 (5th Cir. 1987).            Jurisdiction

over the appeal includes our ability to review the court’s orders

leading up to final judgment.     Cook v. Powell Buick, Inc., 155 F.3d

758, 761 (5th Cir. 1998); Exxon Corp. v. St. Paul Fire & Marine

Ins. Co., 129 F.3d 781, 784 (5th Cir. 1997).           We now turn to the

merits of Curol’s appeal.

           First, Curol contends that the district court erred in

vacating   the   September   order   that    allowed   him   to    amend   his

complaint to add AOP as a party.         The district court did not abuse

its discretion in vacating its previous order because Curol did not

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have good cause to modify the scheduling order.    See S & W Enter.,

L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 536 (5th

Cir. 2003); see also FED. R. CIV. P. 16(b).   Curol cannot show good

cause to modify the scheduling order because he was obviously aware

of AOP’s role as a potential defendant when he stated in the

original complaint that his injury was caused by an “AOP two piece

ball valve.”

          Second, Curol argues that the district court erred in

denying his motion for reconsideration; however, he has failed to

show that the “denial was so unwarranted as to constitute an abuse

of discretion.”   Brown & Root, 828 F.2d at 328.

          Third, Curol contends that the district court erred in

denying his request to reserve rights against AOP.     The district

court did not abuse its discretion because AOP never became a party

to the action, and Curol had no right to proceed against AOP in the

case.

          AFFIRMED.




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