PARTY X (sealed) v. PARTY Y (sealed)

Filing 106

MEMORANDUM AND ORDER GRANTING 104 MOTION for Reconsideration of 103 Order of Dismissal. Under the holding of SmallBizPros, once George filed the July 26, 2012 stipulation of dismissal under Rule 41(a)(1)(A)(ii), the dismissal of this action becam e effective immediately and this court lacked jurisdiction to take any further actionincluding entering the order of dismissal. Georges motion for reconsideration, (Docket Entry No. 104), is granted. The courts order of dismissal, (Docket Entry No. 103), is vacated for lack of jurisdiction. This case has been, and is, dismissed.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA, ex rel.
ELAINE GEORGE,
Plaintiffs,
V.
BOSTON SCIENTIFIC CORPORATION
and GUIDANT CORPORATION,
Defendants.

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CIVIL ACTION NO. H-07-2467

MEMORANDUM AND ORDER
This long-running qui tam action reached its end—at least in this court—on July 26, 2012
when the relator, Elaine George, filed a stipulation signed by all parties dismissing the action under
Federal Rule of Civil Procedure 41(a)(1)(A)(ii). The stipulation did not specify whether the
dismissal was with or without prejudice. (Docket Entry No. 102). The court entered an order of
dismissal based on the stipulation, stating that the action was dismissed with prejudice. (Docket
Entry No. 103).
George moved for reconsideration. (Docket Entry No. 104). According to George:
Rule 41(a)(B) provides that a stipulation of dismissal is automatically
without prejudice “[u]nless the notice or stipulation states otherwise”
or unless an exception relating to a previously dismissed action[]
applies. Because the “previously dismissed action” exception does
not apply here and the stipulation does not state otherwise, the
parties’ stipulation of dismissal had the effect of dismissing the case
without prejudice as provided by the Federal Rules. By issuing its
July 26 Order stating that the dismissal was “with prejudice,” the
Court inadvertently undermined the effect of the stipulation and Rule
41(a)(1)(B).

(Id., at 1). The defendants, Boston Scientific Corporation and Guidant Corporation, oppose
reconsideration. (Docket Entry No. 105). According to the defendants, the “previously dismissed
action” exception does apply based on George’s failure to replead her retaliatory-discharge claim
under Illinois law. (Id., at 2). The defendants assert that any new retaliatory-discharge action would
be barred by limitations. (Id., at 2–3).
A motion to reconsider is appropriately considered under Rule 59(e), which allows for “[a]
motion to alter or amend a judgment [that is] filed no later than 28 days after the entry of the
judgment.” This rule applies to a motion to reconsider a court’s previous ruling. See, e.g., Rogers
v. KBR Tech. Servs. Inc., No. 08-20036, 2008 WL 2337184, at *5 (5th Cir. June 9, 2008) (per
curiam) (quoting Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003)). Relief under this
rule is difficult to obtain. As the Fifth Circuit explains:
A Rule 59(e) motion—which asks the court to set aside its previous
judgment—“serves the narrow purpose of allowing a party to correct
manifest errors of law or fact or to present newly discovered
evidence. Reconsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly.”
Ewans v. Wells Fargo Bank, N.A., 389 F. App’x 383, 389–90 (5th Cir. 2010) (quoting Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004)); accord 11 CHARLES ALAN WRIGHT, ET AL.,
FEDERAL PRACTICE & PROCEDURE § 2810.1, at 124–26 (2d ed. 1995).
The Fifth Circuit recently held that once a plaintiff files a stipulation of dismissal under
41(a)(1)(a)(ii), a district court lacks jurisdiction to take any further action, including entering an
order of dismissal such as the one that this court entered:
Because filing a voluntary stipulation of dismissal under Rule
41(a)(1)(A)(ii) is effective immediately, any action by the district
court after the filing of such a stipulation can have no force or effect
because the matter has already been dismissed by the parties
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themselves without any court action. Any dismissal entered by a
district court after the filing of a voluntary dismissal is superfluous.
SmallBizPros, Inc. v. MacDonald, 618 F.3d 458, 463 (5th Cir. 2010) (per curiam) (internal quotation
marks omitted). While a district court may retain ancillary jurisdiction “to enforce the terms of a
settlement agreement” under limited circumstances, neither party has suggested that such
circumstances are present. Id.
Under the holding of SmallBizPros, once George filed the July 26, 2012 stipulation of
dismissal under Rule 41(a)(1)(A)(ii), the dismissal of this action became effective immediately and
this court lacked jurisdiction to take any further action—including entering the order of dismissal.
George’s motion for reconsideration, (Docket Entry No. 104), is granted. The court’s order of
dismissal, (Docket Entry No. 103), is vacated for lack of jurisdiction. This case has been, and is,
dismissed.

SIGNED on August 7, 2012, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge

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