De Leon v. Marcos et al

Filing 98

USCA ORDER Denying petitioner's request for a writ of mandamus re: 97 Letter by Ferdinand De Leon. USCA case no. 10-1488. (bjrsl, )

U n i t e d States Court of Appeals Appellate Case: 10-1488 Document: 01018544801 Date Filed: 12/03/2010Circuit 1 T e n t h Page:

FILED

U N I T E D STATES COURT OF APPEALSD e c e m b e r 3, 2010 F O R THE TENTH CIRCUIT
E l i s a b e t h A. Shumaker C l e r k of Court

I n Re: FERDINAND DE LEON, Petitioner.

N o . 10-1488 ( D . C . No. 1:09-CV-02216-MSK-MEH) ( D . Colo.)

ORDER B e f o r e TACHA, HARTZ, and TYMKOVICH, Circuit Judges. P e t i t i o n e r Ferdinand de Leon seeks a writ of mandamus compelling the d i s t r i c t court to vacate its order of September 23, 2010, which granted defendant D e n ma n Investment Company's motion to dismiss with prejudice. Petitioner c o n t e n d s that on August 19, 2010, he dismissed the case without prejudice with a s t i p u l a t i o n of dismissal signed by all parties pursuant to Fed. R. Civ. P. 4 1 ( a ) ( 1 ) ( A ) ( i i ) , and therefore, the district court lacked jurisdiction beyond that d a t e to issue a dispositive ruling on the merits. A writ of mandamus is not a substitute for an appeal, but is a "drastic r e me d y , and is to be invoked only in extraordinary circumstances." In re Cooper T i r e & Rubber Co., 568 F.3d 1180, 1186 (10th Cir. 2009) (quotation marks o mi t t e d ) . "Therefore, we will grant a writ only when the district court has acted w h o l l y without jurisdiction or so clearly abused its discretion as to constitute u s u r p a t i o n of power." Id. (quotation marks omitted).

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P e t i t i o n e r argues he is entitled to the writ under Smith v. Phillips, 881 F.2d 9 0 2 (10th Cir. 1989). In that case, the parties filed a stipulation of dismissal u n d e r Rule 41(a)(1), along with a request for a confidentiality order concerning t h e i r settlement agreement. The court denied the proposed confidentiality order, b u t signed the order of dismissal. Smith, 881 F.2d at 903. Later, the court sua s p o n t e ordered the parties to publicly disclose the terms of their settlement. Id. Plaintiffs sought mandamus relief in this court, arguing that the stipulation of d i s mi s s a l divested the district court of any jurisdiction it might have had to order t h e settlement agreement made public. We agreed, holding that "[o]nce a s t i p u l a t i o n is filed, the action on the merits is at an end." Id., 881 F.2d at 904. We emphasized that "[a] voluntary dismissal by stipulation under Rule 4 1 ( a ) ( 1 ) ( i i ) is of right, cannot be conditioned by the court, and does not call for t h e exercise of any discretion on the part of the court." Id. at 904. But we drew a n important distinction between such dismissals and those filed under subsection ( a ) ( 2 ) of Rule 41. We noted that, unlike dismissals under subsection (a)(1), d i s mi s s a l s under subsection (a)(2) may be conditioned "upon such terms and c o n d i t i o n s as the court deems proper, which could include retention of some j u r i s d i c t i o n by the court." Id. at 904-05 (quotation marks omitted). Thus, S m i t h holds that mandamus relief may be appropriate to curtail district court a c t i o n after a Rule 41(a)(1) stipulation of dismissal. I n its response to petitioner's motion to vacate in the district court, Denman a r g u e d that the stipulation of dismissal here was filed pursuant to subsection
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( a ) ( 2 ) of Rule 41, with the intent that the district court would retain some j u r i s d i c t i o n over the case, specifically, the power to convert any dismissal without p r e j u d i c e into a dismissal with prejudice upon completion of the terms of the s e t t l e me n t . Petitioner disagrees; he argues that the stipulation was filed under s u b s e c t i o n (a)(1) of Rule 41, resulting in automatic divestiture of the district c o u r t ' s jurisdiction. We need not resolve this dispute on mandamus review. Suffice it to say, there is some ambiguity in the record as to which subsection of R u l e 41 applies to the stipulation of dismissal, which was an undisputed and d i s p o s i t i v e factor in Smith. Under these circumstances, we cannot say that p e t i t i o n e r ' s right to the writ is "clear and indisputable." Cooper Tire, 568 F.3d at 1 1 8 7 (quotation marks omitted). Petitioner has also failed to show that he has "no other adequate means to a t t a i n the relief he desires" and that issuance of the writ is "appropriate under the c i r c u ms t a n c e s . " Id. (quotation marks omitted). Petitioner has other avenues of r e l i e f , including a pending motion to vacate in the district court. If that motion is u n s u c c e s s f u l , petitioner can file an appeal in this court. He contends that an appeal is inadequate to protect the class's rights b e c a u s e other parties are already using the challenged order defensively in other j u r i s d i c t i o n s , arguing that the class is collaterally estopped from enforcing its j u d g me n t against the Marcos estate. But mandamus is not necessary to protect a l i t i g a n t against the preclusive effect in a second case of a prior judgment that may l a t e r be overturned on appeal. If the prior judgment is overturned, the party can
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s e e k relief in the second case under Federal Rule of Civil Procedure 60 (b)(5) or a s t a t e - l a w equivalent. See Fed. R. Civ. P. 60(b)(5) ("the court may relieve a party . . . from a final judgment . . . [if] it is based on an earlier judgment that has been r e v e r s e d or vacated"). Petitioner argues alternatively that he may be unable to appeal the district c o u r t ' s dismissal of his claim because the dispute may be mooted by a settlement. But if appeal is impossible, petitioner is protected by the doctrine that an u n a p p e a l a b l e order cannot have preclusive effect. See Bell v. Dillard Dep't S t o r e s , Inc., 85 F.3d 1451, 1456-1459 (10th Cir. 1996); Restatement (Second) of J u d g me n t s § 28(1) (stating that preclusion is not permitted if the "party against w h o m preclusion is sought could not, as a matter of law, have obtained review of t h e judgment in the initial action"); id. cmt. a (stating that §28(1) applies when " t h e controversy has become moot"). P e t i t i o n e r ' s request for a writ of mandamus is DENIED.

E n t e r e d for the Court,

E L I S A B E T H A. SHUMAKER, Clerk

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