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Everett v. BRP-Powertrain Gmbh & Co. KG

United States District Court, E.D. Wisconsin

October 11, 2017

GREGORY EVERETT, Plaintiff,
v.
BRP-POWERTRAIN, GMBH & CO. KG, KODIAK RESEARCH, LTD., BOMBARDIER RECREATIONAL PRODUCTS, and LEADING EDGE AIR FOILS, LLC, Defendants.

          DECISION AND ORDER

          LYNN ADELMAN UNITED STATES DISTRICT JUDGE.

         This is a products-liability case in which the plaintiff, Gregory Everett, suffered personal injuries during a crash of his personal aircraft. The plaintiff sued four defendants, which I have been referring to as “BRP Inc., ” “BRP-Rotax, ” “Kodiak, ” and “LEAF.” The case was originally assigned to Judge Rudolph T. Randa of this court. While the case was before him, he granted motions to dismiss filed by BRP Inc., BRP-Rotax, and Kodiak. The dismissals were for lack of personal jurisdiction. The case then proceeded on the merits against the remaining defendant, LEAF. At about this time, Judge Randa became unable to preside over cases, and the case was reassigned to me.

         After the reassignment, the plaintiff filed a motion asking me to reconsider Judge Randa's order granting the motions to dismiss. The motion was based, in part, on discovery that the plaintiff had taken from LEAF, including the deposition of its owner, who testified about the previously dismissed defendants' contacts with Wisconsin. A few months after the plaintiff filed this motion, and before I had decided it, the plaintiff and LEAF entered into a settlement agreement that resolved the plaintiff's claims against LEAF. To implement the settlement, the plaintiff and LEAF filed a document bearing the caption “Stipulation for Dismissal.” See ECF No. 94. This document stated:

IT IS HEREBY STIPULATED by and between Plaintiff Gregory Everett and Defendant [LEAF], through their respective counsel, that any and all claims against Defendant [LEAF] in the above-captioned case are to be dismissed with prejudice and without costs to any party and that an Order to that effect may be entered without further notice.

Id. The document was signed by the plaintiff's counsel and LEAF's counsel. Attached to the document was a proposed order dismissing the plaintiff's claims against LEAF. I signed the proposed order on May 4, 2017, and it was docketed the same day. The order, which is captioned “Order for Dismissal, ” states:

UPON THE STIPULATION between the parties,
IT IS HEREBY ORDERED that all claims by Plaintiff Gregory Everett against Defendant [LEAF], in the above-captioned matter are dismissed with prejudice and without cost to either party.

ECF No. 95.

         On July 7, 2017, I issued a decision and order granting, in part, the plaintiff's motion to reconsider Judge Randa's order dismissing the other three defendants for lack of personal jurisdiction. I granted the motion as to defendants BRP-Rotax and Kodiak and denied the motion as to defendant BRP Inc. I also ordered BRP-Rotax and Kodiak to file answers to the plaintiff's complaint.

         After I issued the order vacating Judge Randa's dismissal of BRP-Rotax and Kodiak, these defendants, citing Federal Rule of Civil Procedure 12(h)(3), filed briefs “suggesting” that I lack subject matter jurisdiction over this action. In these briefs, the defendants argue that the stipulation of dismissal concerning LEAF was, in effect, a stipulation of dismissal of the entire action under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). The defendants contend that the moment the plaintiff and LEAF filed the stipulation, it had the effect of dismissing the entire case and divesting me of subject-matter jurisdiction. Therefore, the defendants argue, my order granting the plaintiff's motion for reconsideration was a nullity, and I may take no further action on the merits of the plaintiff's claims against them.[1]

         The defendants, in their suggestions, point out that a stipulation of dismissal under Rule 41(a)(1)(A)(ii) is self-executing, meaning that it is effective the moment it is filed and does not require a separate court order. I agree with the defendants on this point. See Nelson v. Napolitano, 657 F.3d 586, 587 (7th Cir. 2011). Indeed, I previously published a memorandum making this very point and informing the bar that I would not sign proposed orders purporting to dismiss a case based on a previously filed stipulation of dismissal or notice of voluntary dismissal under Rule 41(a). See Scott v. Delbert Servs. Corp., 973 F.Supp.2d 949 (E.D. Wis. 2013). But the issue here is not whether a stipulation of dismissal under Rule 41(a) is self-executing-it clearly is. The issue is whether the stipulation of dismissal filed by the plaintiff and LEAF, which does not mention Rule 41(a), nonetheless qualifies as a stipulation of dismissal under that rule.[2]

         In my order granting the motion for reconsideration, I addressed the effect of the stipulation of dismissal. ECF No. 96 at 6 n.2. I concluded that the stipulation did not qualify as a stipulation of dismissal under Rule 41 because it did not purport to dismiss the entire action and also because it was not signed by BRP Inc., BRP-Rotax, and Kodiak. This was in keeping with the text of the rule, which governs the dismissal of “actions” (rather than claims or parties) and which requires the stipulation to be “signed by all parties who have appeared.” BRP Inc., BRP-Rotax, and Kodiak had all appeared as parties in the case (albeit for the limited purpose of contesting personal jurisdiction), and thus I considered them “parties who have appeared.”

         Kodiak and BRP-Rotax argue that I was mistaken in thinking that the stipulation of dismissal did not purport to dismiss the entire action and that the stipulation had to be signed by them and BRP Inc. As to the first point, they argue that the stipulation must have applied to the entire action because, by the time it was filed, the only claim remaining in the action was the claim against LEAF, which the stipulation purported to dismiss. But this is not accurate. It is true that, at the time the stipulation was filed, the plaintiff's claims against all defendants other than LEAF had been dismissed. But the dismissal of the claims against the other defendants was interlocutory-no judgment had been entered in the defendants' favor under Federal Rule of Civil Procedure 54(b)-which meant that those claims had not been finally resolved. Moreover, at the time the stipulation was filed, a motion to reinstate those very claims was pending. That motion and the claims it involved were undoubtedly parts of this action-what other action could they have been a part of? Thus, at the time the plaintiff and LEAF filed the stipulation of dismissal, this action still encompassed the claims against BRP Inc., BRP-Rotax, and Kodiak.

         Because the claims against these defendants were still included in this action, the stipulation dismissing the claims against LEAF was not a stipulation dismissing the entire action under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). See Taylor v. Brown, 787 F.3d 851, 857 (7th Cir. 2015) (recognizing that notice or stipulation of dismissal under Rule 41(a)(1)(A) may dismiss only the whole case; it cannot be used to dismiss fewer than all claims in a suit); Berthold Types Ltd. v. Adobe Systems Inc., 242 F.3d 772, 777 (7th Cir. 2001) (same). Nor did I understand it to be one. As noted above, I do not issue orders dismissing actions under Rule 41(a)(1)(A) because they are superfluous. Scott, 973 F.Supp.2d at 949. But I signed the proposed ...


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