Wilson, et al v. A C and S Inc, et al
OPINION AND ORDER denying in its present form 108 Motion to Dismiss. A revised motion, stipulation, or other proposal for disposition of the case shall be filed within 30 days of the date of this order. Signed by Chief Judge Philip P Simon on 3/16/15. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
IN RE: ASBESTOS PRODUCTS
LIABILITY LITIGATION (NO. VI)
Remanded from E.D.Pa. 08-cv-90732
OPINION AND ORDER
On February 15, 2015, Plaintiff Bonnie Wilson filed a second motion to dismiss
this action voluntarily and with prejudice pursuant to Federal Rule of Civil Procedure
41(a)(2). (Docket Entry 108.) Wilson’s motion also seeks leave to reinstate the case within
90 days of dismissal should any issues arise in winding up the case and settlement.
Under Rule 41(a)(2), an action may be dismissed at the plaintiff’s request “only by court
order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2); see also Garber v.
Chi. Mercantile Exch., 570 F.3d 1361, 1364-65 (Fed. Cir. 2009) (applying Seventh Circuit
law). Unfortunately the terms set out in Wilson’s motion are not proper in the Seventh
The Seventh Circuit does not allow arrangements whereby the District Court
retains jurisdiction after settlement and dismissal:
A district court’s original jurisdiction to entertain a lawsuit does not
carry over to one party’s later claim that the other has breached their
settlement of that suit. Thus, ‘when a suit is dismissed with prejudice, it is
gone, and the district court cannot adjudicate disputes arising out of the
settlement that led to the dismissal merely by stating that it is retaining
jurisdiction.’ The terms of a settlement can be embodied in an order
dismissing the lawsuit, which would allow that order to serve as an
enforceable injunction. But that step was not taken here, so any claim
relating to nonperformance of the settlement agreement must be brought
as a breach-of-contract action.
Balshe LLC v. Ross, 441 Fed. Appx. 395, 396 (7th Cir. 2011) (citing Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375 (1994); Shapo v. Engle, 463 F.3d 641, 643 (7th Cir. 2006);
FED. R. CIV. P. 65; Blue Cross & Blue Shield Ass’n v. Am. Express Co., 467 F.3d 634, 636 (7th
Cir. 2006); additional citations omitted; quoting Dupuy v. McEwen, 495 F.3d 807, 809 (7th
Cir. 2007) (emphasis added)). Where a party must bring a breach of contract action, that
party must initiate a separate, new lawsuit. In order to bring that enforcement action in
federal court, the party seeking enforcement must demonstrate federal subject matter
jurisdiction over the contract. “The facts to be determined with regard to such alleged
breaches of contract are quite separate from the facts to be determined in the principal
suit, and automatic jurisdiction over such contracts is in no way essential to the conduct
of federal-court business.” Kokkonen, 511 U.S. at 381.
In its present form, then, I must reject Wilson’s motion to voluntarily dismiss this
suit, despite my appreciation of the parties’ successful efforts to resolve their dispute.
Counsel are advised to review the case law cited in this Order and consider alternate
methods of achieving their intended ends.
Plaintiff’s Second Motion to Dismiss Action Pursuant to Fed. R. Civ. P. 41(a)(2)
(DE 108) is DENIED in its present form. A revised motion, stipulation, or other
proposal for disposition of the case shall be filed within 30 days of the date of this order.
ENTERED: March 16, 2015
/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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