Kary Brown collided with a car while he was driving a truck for Koetter Woodworking. Melvin Kimbrell, a passenger in the car, suffered injuries. Kimbrell brought a personal injury action against both Brown and Smith in October of 2008, although he did not serve process until June of 2009. When Brown advised the district court that he had filed a bankruptcy petition in February 2008, the court stayed the proceeding as to him. Koetter moved to dismiss based on Kimbrell's failure to use reasonable diligence in serving process. Judge Gilbert (S.D. Ill.) granted the motion but did not enter judgment. Kimbrell appeals.

In their opinion, Judges Evans, Sykes, and Hamilton dismissed for lack of jurisdiction. The final judgment rule provides that a judgment may not be appealed until the litigation in the district court is over and there is nothing more for the court to do but execute the judgment. On appeal, Kimbrell takes the position that his claim against Brown was void ab initio because it was filed in violation of the bankruptcy stay. The Court noted a debate in other circuits about whether such an action is void or voidable, but felt no need to weigh in. Even if it is void ab initio, the Bankruptcy Code provides avenues for later adjudication. Instead, the Court noted that Kimbrell has taken inconsistent positions regarding his claim against Brown. In fact, the Court discovered that the stay was actually lifted before oral argument and Kimbrell filed a new complaint against Brown. The Court likened the situation to a sort of judicial estoppel, in which a party prevails in one phase of the case on a particular argument and then adopts a contradictory argument in an attempt to prevail in a later phase of the case. Here, Kimbrell has never prevailed, but his gamesmanship in appealing the dismissal of Koetter while still pursuing Brown is unacceptable. The case remains open and unfinished. The final judgment rule does not allow the Court to consider the merits.