Kirkman v. Witt et al.

Filing 42

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that plaintiff Steven Kirkman's motion to dismiss case without prejudice [# 39 ] is granted, with the following provision: if Kirkman re-files these claims, he must pay to the defendants any costs, including reasonable attorney fees, incurred in this case. IT IS FURTHER ORDERED that the motions to dismiss by defendants Russell Schindehette [# 5 ]; Old Republic Title Company [# 7 ]; and Angela Bahr [# 17 ] are denied as m oot. IT IS FINALLY ORDERED that the motions for sanctions by defendants Russell Schindehette [# 13 ], Angela Bahr [# 16 ], and Collins Appraisal Consultants, LLC and K. Kelly Wallace [# 38 ] are denied. Signed by District Judge Catherine D. Perry on 06/13/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

STEVEN KIRKMAN,
Plaintiff,
vs.
JEFFREY WITT, et al.,
Defendants.

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) Case No. 4:12CV1704 CDP
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MEMORANDUM AND ORDER

On April 2, 2013, plaintiff Steven Kirkman’s attorney was allowed to withdraw
from this case. The following day, the case was transferred to me. On April 11, 2013, I
ordered Kirkman (now acting pro se) to have a new attorney enter an appearance by May
3, 2013 or to respond by May 31, 2013 to the pending motions in this case. No attorney
entered an appearance by May 3. Instead, Kirkman filed a pro se motion to dismiss this
action without prejudice because he had been “unable to retain competent replacement
counsel.”
Although they had also moved to dismiss the claims against them, several of the
defendants oppose Kirkman’s motion to dismiss. These defendants argue that Rule
41(a)(1)(B), Fed. R. Civ. P., requires any voluntary dismissal of this case to operate “as
an adjudication on the merits” – that is, with prejudice – because this is an action
Kirkman previously filed and dismissed voluntarily in state court. These defendants also

argue that I should rule on their motions for sanctions, which were pending before
Kirkman sought to dismiss the case.
Therefore, this case now comes before me on seven motions: plaintiff’s motion to
dismiss without prejudice; three defendants’ motions to dismiss with prejudice various
parties and claims; and three motions for sanctions under Rule 11, Fed. R. Civ. P. After
careful consideration, I will grant Kirkman’s motion to dismiss without prejudice.
Because the whole case will be dismissed, I will deny as moot the motions to dismiss
filed by defendants Russell Schindehette, Angela Bahr, and Old Republic Title Company.
I will also deny the motions for sanctions filed by Schindehette, Bahr, K. Kelly Wallace,
and Collins Appraisal Consultants, LLC, because I do not find that Kirkman’s claims
against them were frivolous or were brought for an improper purpose.
I.

Motions to Dismiss
Under Rule 41(a)(1), Fed. R. Civ. P., a plaintiff may dismiss his case without a

court order – and without prejudice – before the opposing party has answered. “But if the
plaintiff previously dismissed any federal- or state-court action based on or including the
same claim,” such a dismissal “operates as an adjudication on the merits,” that is, with
prejudice. Id.
Under Rule 41(a)(2), a court order is required if a plaintiff seeks to dismiss his case
after the opposing party has filed an answer. Such a dismissal must be “on terms that the
court considers proper.” Id.; see also Kern v. TXO Prod. Corp., 738 F.2d 968, 972 (8th
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Cir. 1984) (Rule 41(a)(2) dismissal is not automatic but committed to the discretion of
the district court).
Here, certain defendants agree with Kirkman that dismissal is proper, but they
argue that any dismissal must be with prejudice, in accordance with Rule 41(a)(1)(B).
But Kirkman’s motion to dismiss is not governed by Rule 41(a)(1) because some of the
defendants have already filed answers in this case. As such, this action is governed by
Rule 41(a)(2) and may be dismissed “only by court order, on terms that the court
considers proper.”
Because of Kirkman’s current lack of representation and his inability to find new
counsel, I find that dismissal without prejudice is proper. But I will attach a condition to
this dismissal: if Kirkman files yet another case “based on or including the same claim
against the same defendant,” he will be required to pay the costs of this action, including
the reasonable attorneys’ fees the defendants expended in defending it. Rule 41(d), Fed.
R. Civ. P.; Kern, 738 F.2d at 972 (quoting New York, Chicago & St. Louis R.R. Co. v.
Vardaman, 181 F.2d 769, 771 (8th Cir. 1950)) (“payment to the defendant of the
expenses and a reasonable attorney fee may properly be a condition for dismissal without
prejudice”); see also Chandler v. Case W. Reserve Univ., 57 Fed. Appx. 683, 685–86 (6th
Cir. 2003) (district court properly dismissed with prejudice re-filed action because
plaintiff did not pay, as ordered, defendants’ attorney fees from previous case).

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Because the entire action will be dismissed, the defendants’ motions to dismiss
various parties and claims will be denied as moot.
II.

Motions for Sanctions
District courts retain jurisdiction to rule on motions for sanctions even if filed after

a dismissal. Dunn v. Gull, 990 F.2d 348, 350 (7th Cir. 1993); see also Kurkowski v.
Volcker, 819 F.2d 201, 203 (8th Cir. 1987).
Here, several of the defendants have moved for sanctions against Kirkman under
Rule 11, Fed. R. Civ. P. In particular, these defendants argue that this action was
frivolous or was instituted for an improper purpose, namely, to evade bankruptcy laws.
See Rule 11(b)(1)–(2). The defendants contend that Kirkman knew or should have
known that he had no standing to bring this action because he had previously filed for and
been discharged from bankruptcy. They also contend that Kirkman’s prior suit in state
court, which he voluntarily dismissed, was substantially similar to the instant action and
therefore somehow provides a basis for sanctions.
I disagree. First, the defendants have not shown why Kirkman should be
sanctioned for instituting this lawsuit after voluntarily dismissing his similar state-court
suit. Kirkman dismissed the state-court action for the explicit purpose of re-filing in this
court. See Kirkman v. Witt, 1011-CV11671 (St. Charles Cir. Ct. March 30, 2011). The
defendants have not demonstrated that the re-filing was done for any improper purpose.

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Second, though Kirkman did file for bankruptcy, he instituted this action after he
had been discharged, and he listed a potential lawsuit against some of the defendants (and
defendants’ employers) on his schedule of personal property. (See Kirkman Bankr. Pet.,
Ex. 1 to Schindehette Mot. to Dismiss, p. 13.) As such, there are legitimate questions
about whether some or all of Kirkman’s claims (including those against Schindehette,
Wallace, Bahr, and Collins Appraisal) were property of the bankruptcy estate and
whether Kirkman regained standing to pursue those claims after discharge. Under these
circumstances, I do not find that Kirkman deserves sanctions for instituting this case.1
Accordingly,
IT IS HEREBY ORDERED that plaintiff Steven Kirkman’s motion to dismiss
case without prejudice [#39] is granted, with the following provision: if Kirkman re-files
these claims, he must pay to the defendants any costs, including reasonable attorney fees,
incurred in this case.
IT IS FURTHER ORDERED that the motions to dismiss by defendants Russell
Schindehette [#5]; Old Republic Title Company [#7]; and Angela Bahr [#17] are denied
as moot.

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Defendant Schindehette is the only defendant who cites any precedent in support of his motion for
sanctions. None of the cases he relies upon is on point. In most of the cited cases, sanctions were
awarded because the claim brought had been previously adjudicated on the merits. See Kountze v.
Gaines, 536 F.3d 813 (8th Cir. 2008), Prof’l Mgmt. Assocs., Inc. v. KPMG, LLP, 345 F.3d 1030 (8th
Cir. 2003); Landscape Props., Inc. v. Whisenhunt, 127 F.3d 678 (8th Cir. 1997). That is not the case
here. The rest of the cases provide no support for awarding sanctions here other than generally
affirming a district court’s discretion to do so.

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IT IS FINALLY ORDERED that the motions for sanctions by defendants Russell
Schindehette [#13], Angela Bahr [#16], and Collins Appraisal Consultants, LLC and K.
Kelly Wallace [#38] are denied.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 13th day of June, 2013.

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