WALTER et al v. ROYAL CARRIBEAN CRUISES LTD et al

Filing 64

ORDER denying 54 Motion to Dismiss. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DEANN WALTER,

)
)
Plaintiff,
)
)
v.
)
)
ISHERWOOD ENTERPRISES, INC, )
d/b/a CUSTOM COACH AND
)
LIMOUSINE OF PORTLAND,
)
)
Defendant.
)

2:13-cv-00445-JAW

ORDER DENYING MOTION TO DISMISS
This is a negligence action transferred to this District from the Southern
District of Florida. Isherwood Enterprises, Inc. (Isherwood)1 seeks to dismiss the
case on res judicata grounds because it contends that while the case was still in
Florida, Ms. Walter stipulated to voluntary dismissal “with prejudice” without
excluding Isherwood. Ms. Walter argues that the Florida district court was without
jurisdiction and that the dismissal was ineffective as to Isherwood.

The Court

concludes that the district court in Florida had jurisdiction over the case during the
period it was being transferred to the District of Maine. However, the Court also
concludes that because Ms. Walter did not agree to the dismissal of her case against
Isherwood, Isherwood’s motion to dismiss must be denied.

The parties refer to Isherwood as “Isherwood” and “Custom Coach.” For consistency, the
Court refers to this Defendant as “Isherwood.”
1

I.

LEGAL STANDARD
The doctrine of res judicata prevents a party who has already litigated a

matter from taking another “bite at the apple” by attempting the same litigation
against the same party a second time. Res judicata bars the later action if “‘1) the
same parties, or their privies are involved; 2) a valid final judgment was entered in
the prior action; and 3) the matters presented for decision were, or might have been,
litigated in the prior action.’” Roy v. City of Augusta, Me., 712 F.2d 1517, 1520 (1st
Cir. 1983) (quoting Kradoska v. Kipp, 397 A.2d 562, 565 (Me. 1979)).
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a case for
“failure to state a claim upon which relief can be granted.” A party seeking to
dismiss a suit under Rule 12(b)(6) may invoke res judicata as a ground for
dismissal. See Andrew Robinson Int’l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51
(1st Cir. 2008); Glenwood Farms, Inc. v. O’Connor, 666 F. Supp. 2d 154, 174 n. 14
(D. Me. 2009).

“[W]here the motion to dismiss is premised on a defense of res

judicata . . . the court may take into account the record in the original action.”
Andrew Robinson, 547 F.3d at 51.
II.

FACTS
Ms. Walter alleges that Isherwood negligently failed to secure her motorized

scooter when it transported her on a bus during a shoreside excursion from a cruise
on which she was a passenger. Compl. (ECF No. 1). The merits of the motion to
dismiss arise, not from these allegations, but from an unusual set of procedural
events.

2

A.

The Motions to Dismiss

On October 5, 2011, in the United States District Court for the Southern
District of Florida, Ms. Walter and her husband filed a complaint against
Isherwood, Intercruises Shoreside & Ports Services (Intercruises), and Royal
Caribbean Cruises, Ltd. (Royal Caribbean).

Id.

On November 28, 2011,

Intercruises moved to dismiss the case for improper venue, Mot. to Dismiss (ECF
No. 15).

The next day, November 29, Isherwood moved to dismiss for lack of

personal jurisdiction. Def., Isherwood Enters., Inc.’s Mot. to Dismiss Pl.’s Compl. for
Lack of Personal Jurisdiction (ECF No. 18) (Isherwood First Mot. to Dismiss). On
December 6, 2011, Royal Caribbean moved to dismiss Ms. Walter’s husband,
asserting that the “General Maritime Law of the United States . . . does not permit
damages for loss of consortium.” Def. Royal Caribbean Cruises Limited’s Mot. to
Dismiss at 1-2 (ECF No. 21).

On December 16, 2011, Mr. Walter voluntarily

dismissed “without prejudice” his loss of consortium claim, Pl. Ray Walter’s Notice of
Voluntary Dismissal as to Count VI of the Compl. at 1 (ECF No. 28), rendering moot
Royal Caribbean’s motion to dismiss.
B.

The January 24, 2012 Florida Court Order

On January 24, 2012, the district court issued an extensive order ruling on
the Isherwood’s and Intercruises’ motions to dismiss. Omnibus Order (ECF No. 36).
In Section II of the Omnibus Order, the District Court in Florida ruled that it
lacked

personal

jurisdiction

over

Isherwood

under

Florida’s

“long-arm”

jurisdictional statute because the Complaint contained only one conclusory
allegation that Isherwood had “agreed to subject [it]self to the laws and jurisdiction
3

of the State of Florida.” Id. at 9; Compl. ¶ 8. Isherwood’s affidavit, asserting that it
“does no business in Florida, has no past or present offices, employees, or agents
there, has no present contract with Royal Caribbean, and has never been a
principal, agent, employee, or partner in a joint venture with Royal Caribbean,” id.
at 3, shifted the burden back to the plaintiffs to “show by affidavit a basis for
jurisdiction.” Id. at 9. The District Court ruled that Ms. Walters had not provided
and could not provide such proof. Id. at 9-10. The Court concluded: “For the
foregoing reasons, Isherwood’s motion to dismiss the complaint against this
defendant for lack of personal jurisdiction is granted.”

Id. at 10. In the same

Omnibus Order, in Section III, the Court ruled that, as against Isherwood and
Intercruises, venue was improper in the Southern District of Florida under 28
U.S.C. § 1391(a).

Id. at 10-16.

After detailed analysis, the Court wrote:

“Accordingly, the Court declines to lay venue here.” Id. at 16.
In Section IV of the Omnibus Order the Court announced its remedy. Id. at
16-17.

Citing 28 U.S.C. § 1406(a), the Court elected not to dismiss the case

outright, but to transfer it to the District of Maine. The Court reasoned that venue
would be proper in this District “because [Ms.] Walter’s injury occurred there.” Id.
at 17.

“Furthermore,” the Court noted, “both defendants [Isherwood and

Intercruises] are subject to personal jurisdiction in Maine.” Id. However, the Court
ruled that venue was proper in the Southern District of Florida as against Royal
Caribbean. Id.
In Section V, the Court concluded and ordered:

4

It is hereby
ORDERED AND ADJUDGED that (1) Defendant Isherwood
Enterprises, Inc’s. (“Isherwood”) Motion to Dismiss for lack of personal
jurisdiction . . . is GRANTED. (2) Defendant Intercruises Shoreside
and Ports Services, Inc.’s (“Intercruises”) Motion to Dismiss for
improper venue under Fed. R. Civ. Pr. 12(b)(3) is GRANTED; (3) as to
Defendants Isherwood and Intercruises, this action shall be
transferred to the District of Maine for all future proceedings; (4)
Plaintiff’s claims against Royal Caribbean shall proceed before this
Court; (5) a trial order per (4) shall follow.
DONE AND ORDERED in Chambers at Miami, Florida, this 24th day
of January 2012.
Id. at 17-18.
To summarize, after this Order, the district court in Florida retained
jurisdiction over Royal Caribbean and Ms. Walter’s case against Royal Caribbean
continued to proceed there. The district court in Florida determined that (1) it did
not have personal jurisdiction over Isherwood, and that (2) venue in Florida would
be improper as to Intercruises. It ordered Ms. Walter’s case against each of these
defendants transferred to the District of Maine.
C.

Post-Order Activity in Florida

After the January 24, 2012 Order, the docket indicates that the case
proceeded forward between Ms. Walter and Royal Caribbean in the district court in
Florida. The Florida district court issued a Scheduling Order on February 3, 2011
and an Order of Referral to Mediation the same day. Scheduling Order for Pretrial
Conference and Trial (ECF No. 37); Order of Referral to Mediation (ECF No. 38).
The captions of these orders list Royal Caribbean as the sole named Defendant; it
appears they were directed only to Ms. Walter and Royal Caribbean. Id. Mediation
was held before a court-certified mediator on March 27, 2012. Notice of Mediation
5

(ECF No. 42). Somewhat surprisingly, the mediation was successful in resolving
Ms. Walter’s case against both Royal Caribbean and Intercruises. 2 The next docket
entry is April 11, 2012, indicating that the case had settled and that an order would
issue, closing the case for administration purposes. Notice of Court Practices (ECF
No. 44). The Court formally closed the case administratively on April 11, 2012.
Administrative Order Closing Case (ECF No. 43).
On May 29, 2012, counsel for Ms. Walter, Royal Caribbean, and Intercruises
jointly filed a stipulation for dismissal that read, in relevant part:
Plaintiff, Deann Walter, and Defendants, Royal Caribbean Cruises
Ltd. and Intercruises Shoreside & Ports Services, Inc., by and through
their respective undersigned attorneys and pursuant to amicable
settlement of this cause, hereby stipulate and request that this Court
enter an Order dismissing this case, with prejudice, each party to bear
its/his own attorney’s fees and costs.
DATED this 29th day of May, 2012.
Stipulation for Dismissal (ECF No. 45).

Significantly, however, counsel for

Isherwood did not sign the Stipulation for Dismissal, and the Stipulation referred to
Isherwood only in the case caption. Id. On June 11, 2012, the district court entered
an Order of Dismissal:

This result becomes less surprising when one tracks the history of the legal representation.
Intercruises was initially represented by Attorney Craig Lee Monts of the Law Offices of Esther B.
Nickas of Coral Gables, Florida. Notice of Appearance (ECF No. 14). Isherwood was represented by
Attorney Christienne Hopkins Sherouse of Gaebe, Mullen, Antonelli & DiMatteo of Coral Gables,
Florida. Notice of Appearance (ECF No. 17). Royal Caribbean Cruises, Ltd. was initially represented
by Attorney Randy S. Ginsberg of Miami, Florida. Def.’s Unopposed Mot. for Extension of Time to
Respond to Compl. (ECF No. 16). On January 9, 2012, however, Attorney Andrew Douglas Craven of
Houck Anderson P.A. of Miami, Florida entered his appearance on behalf of both Royal Caribbean
and Intercruises. Notice of Appearance (ECF No. 32). It is not surprising that Attorney Craven, who
was representing both Royal Caribbean and Intercruises, was able to resolve Ms. Walter’s claims
against both of his clients at the mediation.
2

6

THIS CAUSE came before the Court on the Stipulation of the parties
pursuant to amicable settlement, and the Court having otherwise fully
considered the matter, it is
ORDERED and ADJUDGED that this action be and the same is
hereby dismissed with prejudice. Further, each party is to bear its own
costs and attorney’s fees, any pending motions are denied as moot and
the clerk is directed to close this file.
DONE AND ORDERED in Chambers at Miami, Florida this 4 day of
June, 2012.
Order of Dismissal (ECF No. 46).3
D.

The Florida Case Is Transferred to the District of Maine

On December 3, 2013, approximately eighteen months after the district court
in Florida ordered that “the clerk is directed to close this file,” id., the case was
transferred to this District. Civil Docket for Case #: 1:11-cv-23610-UU (ECF No.
47).4

The docket, as it was received in this District, bore the flags

“CLOSED,EGT,MEDIATION,” and included all docket entries up to ECF No. 46,
the Order of Dismissal “with prejudice.” Id. at 1-5.
On December 17, 2013, Isherwood filed the pending motion to dismiss. Def.
Isherwood’s Mot. to Dismiss Pl.’s Compl. (ECF No. 54) (Isherwood Second Mot. to
Although the Order of Dismissal recited June 4, 2012 as its operative date, it was not
docketed until June 11, 2012. This delay is not material.
4
Counsel for Isherwood represents that
3

[t]he transfer apparently was completed shortly after staff at the office of the
undersigned called the clerk’s office in the Florida District Court to get a handle on
the status of the case in the wake of the transfer order and subsequent dismissal.
That contact was, in turn, instigated by Plaintiff having served on [Isherwood] a
notice of claim referencing Maine law – a notice that seemed to ignore the apparent
fact that this case was subject to a transfer order (but not actually transferred) and
had been dismissed with prejudice 18 months previously.
Def. Isherwood’s Mot. to Dismiss at 2-3 (ECF No. 54). Counsel for Ms. Walter acknowledges that
“[u]nquestionably, there was confusion on both sides as to the status of the case after the transfer
order had been issued.” Pl.’s Opp’n to Def.’s Mot. to Dismiss at 3 (ECF No. 62).

7

Dismiss). Ms. Walter opposed the motion on January 21, 2014, Pl.’s Opp’n to Def.’s
Mot. to Dismiss (ECF No. 62) (Pl.’s Opp’n), and Isherwood replied on January 23,
2014. Def. Isherwood’s Reply in Support of Its Mot. to Dismiss Pl.’s Compl. (ECF
No. 63) (Def.’s Reply).
III.

POSITION OF THE PARTIES
A.

Isherwood’s Motion

Isherwood focuses on the element of res judicata that requires a “‘valid final
judgment . . . entered in the prior action.’” Isherwood Second Mot. to Dismiss at 3
(quoting Roy, 712 F.2d at 1520). Isherwood argues that at the time the Florida
district court dismissed the entire action “with prejudice,” it retained jurisdiction
over Isherwood. Id. at 4. Isherwood cites Fourth Circuit caselaw and a treatise for
the proposition that “‘[t]he general rule . . . is that jurisdiction is not conveyed from
the transferor court to the transferee court until the record is physically transferred
to the transferee court.’” Id. (citing Wilson-Cook Med. v. Wilson, 942 F.2d 247, 250
(4th Cir. 1991) and 15 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H.
COOPER, FEDERAL PRACTICE AND PROCEDURE § 3846, at 69 (3d ed. 2007)). Isherwood
observes that the order of dismissal in Florida did not differentiate among
defendants, and concludes that the case was fully terminated before the transfer
was completed. Id.
Isherwood also observes that Ms. Walter apparently intended to continue
proceedings in the Florida district court as against co-defendant Intercruises, even
after the transfer order. Id. at 5. As evidence of this, Isherwood points to Ms.
Walter’s stipulation of dismissal in Florida as against Intercruises on May 29, 2012.
8

Id. Isherwood argues that it was Ms. Walter’s responsibility either to follow up and
ensure the transfer order to Maine was completed, to clarify her intentions with the
Florida Court, or to seek relief from the final judgment in the Florida Court under
Rule 60 to preserve her claims against Isherwood. Id.
In Isherwood’s view, all this shows that the Florida dismissal “with
prejudice” was a valid final judgment, and that Ms. Walter’s claim against it in the
District of Maine should be barred under the res judicata doctrine. Id. at 6.
B.

Ms. Walter’s Opposition

Ms. Walter first argues that the matter of Isherwood’s liability could not have
been and was not litigated in the Southern District of Florida because that district
court lacked personal jurisdiction over Isherwood. Pl.’s Opp’n at 4-5. Ms. Walter
turns the doctrine of res judicata against Isherwood, arguing that it is attempting to
relitigate whether the Florida Court had personal jurisdiction over Isherwood. Id.
at 4 (citing Durfee v. Duke, 375 U.S. 106, 114 (1963)).
Ms. Walter next makes a related argument that the Order of Dismissal “with
prejudice” is void as against Isherwood. Id. at 5. This is so, she claims, because the
Florida Court, having determined that it lacked personal jurisdiction, was without
power to render a decision on the merits of the case. Id. She argues that regardless
of when the transfer to the District of Maine became effective, the Florida Court
“had no power over the litigation between Plaintiff and [Isherwood] after the entry
of the dismissal/transfer order.” Id.
Finally, Ms. Walter asserts that Isherwood is judicially estopped to argue
that the Florida Court had jurisdiction to render a decision on the merits, because
9

Isherwood earlier took a contrary position in this same litigation. Id. at 6-8 (citing
Isherwood First Mot. to Dismiss).
Ms. Walter concludes that the Florida Court could not and did not issue a
decision on the merits of her claim against Isherwood, and that the doctrine of res
judicata should not bar her efforts in this District. Id. at 8.
C.

Isherwood’s Reply

Isherwood, in reply, first argues that Ms. Walter filed a voluntary stipulation
of dismissal “with prejudice” in the Florida court, and that the Court consequently
filed an order of dismissal “with prejudice” that did not exclude Isherwood. Def.’s
Reply at 1. Isherwood further contends that “the Florida District opted against
dismissing this action for lack of jurisdiction. Instead, that court ordered that the
action be transferred.” Id. at 2. Isherwood repeats its earlier argument that the
transfer is effective when it is docketed in the transferee court, and that the
transferor court retains jurisdiction over the matter until that time. Id. at 2-3.
Noting that “a transferor court does have jurisdiction to enter the transfer order
itself regardless of lack of personal jurisdiction,” Isherwood reasons that it also had
“[a]uthority to accept and act on a stipulation or voluntary motion to dismiss.” Id.
at 4. Finally, Isherwood denies that it is now taking a legal position inconsistent
with its theory before the Florida court; Isherwood maintains that the Florida court
lacked personal jurisdiction but also insists that the Florida Court did have
authority to accept a voluntary dismissal “with prejudice.” Id. at 4-5.

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IV.

DISCUSSION
The parties agree that the litigation in the Florida Court involved the same

parties and the same subject matter. They disagree as to whether the Order of
Dismissal in Florida represented a valid final judgment as to Isherwood.
A.

The Florida Jurisdiction Issue

The Court concludes that the District Court in Florida retained jurisdiction
over this case until the case was received in this Court on December 3, 2013. See
Wilson, 942 F.2d at 250; WRIGHT, MILLER & COOPER § 3846. After an order of
transfer, a case does not enter a twilight zone of non-jurisdiction during the time it
takes the Clerk’s Office to complete a transfer, no matter how long; some court must
always be able to exercise authority over the case. Here, until December 3, 2013,
that court was the district court in Florida.
Every federal district court has the authority to determine whether it has
personal and subject matter jurisdiction over the parties. Durfee, 375 U.S. at 11116. Other courts must give full faith and credit to such a determination if they
determine that the jurisdictional issue was “fully and fairly litigated and finally
decided in the court which rendered the original judgment.” Id. at 111. This Court
readily concludes that the Florida District Court afforded the parties a full and fair
opportunity to litigate the issue and rendered a careful, reasoned judgment. That
judgment was that the Florida Court lacked personal jurisdiction over Isherwood
and that venue in Florida was improper as to Intercruises.
Nonetheless, Ms. Walter continued to litigate the matter in the Florida Court
after the order of transfer, for both Isherwood and Intercruises, to this District. She
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mediated the case under the auspices of the Florida Court and filed a stipulation of
dismissal as to Intercruises and Royal Caribbean, despite the fact that the Florida
Court had ordered the case against Intercruises (along with Isherwood) transferred.
In response to her stipulation, the Florida Court issued an Order of Dismissal “with
prejudice” that apparently erroneously affected Isherwood as well. Ms. Walter had
the opportunity to correct that error in the Florida Court through a motion under
Rule 59(e) or Rule 60(a). Instead, she left the case unattended for eighteen months
while the transfer languished and, to all outward appearances, the matter was
concluded.
The First Circuit addressed an analogous situation in a bankruptcy case. In
re Spillane, 884 F.2d 642 (1st Cir. 1989). In Spillane, a Rhode Island district court
ordered a bankruptcy case transferred to California. Id. at 644. The debtor filed an
interlocutory appeal, which the First Circuit dismissed. Following the dismissal of
the first appeal, and while the record was still in Rhode Island, the trustee made
“interim applications to the [Rhode Island] district court for attorney’s fees,” which
the district court granted.

Id. at 644, 646.

The debtor appealed the award of

attorney’s fees, arguing, among other things, that the district court had lost
jurisdiction over the case when it ordered the case transferred to California. Id. at
645.
The First Circuit rejected this argument, holding that the district court still
had jurisdiction to determine an award of attorney’s fees. The Court focused on four
facts: (1) “no proceedings have begun in the Central District of California”; (2) “the

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district court did not indicate that the transfer was to take effect immediately”; (3)
“the district court in Rhode Island is in a better position to determine the
reasonableness of fees for work performed in its own district”; and (4) “the
attorney’s service in the case has ended and the part of the dispute on which he
worked is closed.” Id. at 646. The Court declined to adopt a bright-line rule making
the transfer of the record “the universally controlling factor,” noting that “action by
the transferee court or attempts by parties to get such action might deprive the
transferring court of jurisdiction in another case.” Id.; accord Robbins v. Pocket
Beverage Co., Inc., 779 F.2d 351, 355-56 (7th Cir. 1985) (holding that a district court
has the power to reconsider its order transferring a case under 28 U.S.C. § 1404(a)
unless the order was written to take effect immediately, the transferee court
attempted to exercise jurisdiction, or the transferee court actually received the
record).
The rationale of Spillane is not limited to bankruptcy proceedings, and
controls the outcome of the jurisdictional question here. As in Spillane, the Florida
Court acted, at the behest of the parties, eighteen months before the transferred
docket arrived in this Court. During that time, no party made any effort to cause
this Court to take action in the case. As the case was mediated in Florida, and the
parties filed their stipulation to dismiss the case in Florida, the Florida Court was
in a better position to take action on the stipulation.
As a further practical matter, the District of Maine could not act on the
matter until the transfer was complete and this Court received the docket; the

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Southern District of Florida retained jurisdiction until December 3, 2013. Although
the Florida Court had ordered the case transferred to this District as to Intercruises
and Isherwood, the Florida Court was still well within its authority to accept Ms.
Walter’s stipulation as to Intercruises until the moment this Court assumed
jurisdiction. See Wilson, 942 F.2d at 250; WRIGHT, MILLER & COOPER § 3846.
Indeed, the fact that Ms. Walter filed a motion to dismiss Intercruises with
prejudice in Florida shows that she consented to the Florida Court exercising
jurisdiction over the case as to Intercruises—despite the pending transfer order. Cf.
Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982)
(holding that “the requirement of personal jurisdiction represents first of all an
individual right, [which] can, like other such rights, be waived”); Heller Fin., Inc. v.
Riverdale Auto Parts, Inc., 713 F. Supp. 1125, 1128 (N.D. Ill. 1989) (“[T]he consent
to jurisdiction provisions [in a contract] operate as a consent to both jurisdiction and
venue, thereby precluding a motion to transfer for improper venue under 28 U.S.C.
§ 1406(a)”). The Court rejects Ms. Walter’s argument that the Florida district court
relinquished jurisdiction in June 2012. It did not.
B.

The Effectiveness of the Stipulation of Dismissal

Simply because the district court of Florida could have exercised jurisdiction
over Isherwood while the case was being transferred to Maine does not mean that it
properly did so. The cause for the confusion can be traced to the documents the
lawyers filed in late May with the court in Florida.

After the March 27, 2012

mediation, the Court assumes that one of the attorneys must have informed the

14

Court that the case had settled. This resulted in the Florida court issuing a “Notice
of Court Practices”:
THIS CAUSE is before the Court upon the Notice of Settlement.
THE PARTIES are hereby notified that all papers related to the
settlement reached between the parties, including any order of
dismissal stating specific terms and conditions, must be filed by April
23, 2012. If such papers are not filed by this deadline, the pending
claims between the parties will be dismissed without further notice.
Within sixty days of such an order of dismissal, either party may
petition the court to have the case reinstated after showing good cause
as to why settlement was not in fact consummated.
An order will be entered separately closing this case for administrative
purposes.
Notice of Court Practices (ECF No. 44).

On May 29, 2012, the parties filed a

Stipulation of Dismissal. Stipulation for Dismissal (ECF No. 45). The Stipulation
not only informed the Court that Deann Walter and Defendants Royal Caribbean
and Intercruises had arrived at an amicable settlement, but that the parties
“hereby stipulate and request that this Court enter an Order dismissing this case,
with prejudice, each party to bear its/his [sic] own attorney’s fees and costs.”
Stipulation for Dismissal at 1. Furthermore, on May 29, 2012, the parties, namely
Ms. Walter, Royal Caribbean and Intercruises, filed a proposed order identical to
the order the district court in Florida signed on June 4, 2012, which dismissed the
case itself. Id. Attach. 1 (Order of Dismissal). Faced with the stipulation of the
parties and a proposed order closing the case, it is understandable why the Florida
district court signed the proposed order approving the dismissal and closing the
case.

15

Even so, this Court will not enforce the terms of an illusory settlement.
There is no evidence in this record that Isherwood participated in the court-ordered
mediation, that Isherwood’s counsel ever signed the Stipulation of Dismissal, or
that Ms. Walter ever actually settled her claim against Isherwood.

If she had

entered into a true settlement and if Isherwood wished to enforce the terms of the
settlement, Isherwood had (and would still have) the right to file an appropriate
motion to judicially enforce the agreement of the parties.

It has not done so.

Instead, based on loose language in the Stipulation of Dismissal and proposed
Order, which was reduced to an Order, Isherwood is attempting to enforce the
terms of a settlement that it never made. Furthermore, the Florida court’s action in
transferring the case to Maine in December 2013 is at least inconsistent with the
view that the entire case, including Ms. Walter’s claim against Isherwood, had been
dismissed in June 2012.
Ms. Walter’s Florida counsel should have been more careful to delineate in
the Stipulation of Dismissal and proposed Order that the settlement was among
herself, Royal Caribbean and Intercruises and that when transferred, the case
would proceed in Maine between herself and Isherwood.

Without a clear

explanation for what actually happened, it may be that those involved in the
Florida case assumed that the matter as against Isherwood had already been
transferred, that the January 24, 2012 Order dismissing Isherwood and
Intercruises subject to transfer to Maine had removed the Florida court’s

16

jurisdiction, or simply did not think about Isherwood when the Stipulation of
Dismissal was filed and the Order of dismissal was signed and docketed.
This is an unusual situation and it is difficult to shoehorn it into a rule that
clearly fits. Ms. Walter makes a passing reference to Rule 60(b)(4). Pl.’s Opp’n at 1
(citing FED. R. CIV. P. 60(b)(4)). But her reference was based on the premise that
the Florida Order of Dismissal was void because the Florida court did not have any
jurisdiction over the matter, a premise this Court disagrees with.

The other

detailed provisions of Rule 60 do not offer a clear path for relief. They are either
time-restricted, Rule 60(c)(1), or inapplicable, Rule 60(b)(4), (5). Rule 60(b)(6) is the
provision that best fits.
Under Rule 60(b)(6), a court is allowed to relieve a party from a final
judgment for “any other reason that justifies relief.” FED. R. CIV. P. 60(b)(6). The
First Circuit has observed that “[t]he decision to grant or deny [Rule 60(b)(6)] relief
is inherently equitable in nature.” Ungar v. Palestinian Liberation Org., 599 F.3d
79, 83 (1st Cir. 2010).

Rule 60(b)(6) has been aptly described as a “catch-all

provision.” Tuckerbrook Alt. Invs., LP v. Banerjee, 754 F. Supp. 2d 177, 185 (D.
Mass. 2010). It “broadens the grounds for relief from a judgment set out in the five
preceding clauses.” 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY
KANE, FEDERAL PRACTICE AND PROCEDURE § 2864 (3d ed. 2012).
Here, Ms. Walter has alleged that she sustained a serious personal injury due
to the negligence of Isherwood. Compl. (ECF No. 1). Isherwood’s motion seeks to
derive the benefit of a phantom settlement with Ms. Walter based on a combination

17

of unusual circumstances: an eighteen month delay in transferring the case;
jurisdictional confusion as to the status of the case pending transfer; a court-ordered
mediation involving the one remaining party; a settlement of claims against the one
remaining party and another party, the case against whom had been ordered
transferred; the joint representation of the settling parties by one Florida attorney;
and loose language in the stipulation for dismissal and the proposed order of
dismissal. If this Court granted Isherwood’s motion, the net effect would be that
Isherwood would benefit from a settlement to which it was not a party and Ms.
Walter’s claim against Isherwood would be barred because she settled in another
jurisdiction against two other defendants. To avoid this unequitable result and to
resolve the case on its merits, the Court declines to view the Florida dismissal as a
valid final judgment against Isherwood. Consequently, because Isherwood does not
meet all of the requirements of the defense of res judicata, the Court will not grant
Isherwood’s motion to dismiss.
V.

CONCLUSION
The Court DENIES the Defendant’s Motion to Dismiss (ECF No. 54).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 20th day of May, 2014

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