Everett v. BRP-Powertrain GmbH & Co KG et al
ORDER signed by Judge Lynn Adelman on 10/11/2017 denying 97 Motion to Suggest Lack of Jurisdiction by BRP-Powertrain GmbH & Co KG ; denying 98 Motion Suggestion of Lack of Subject Matter Jurisdiction by Kodiak Research Ltd ; denying 99 Mot ion for Default as to BRP-Rotax; denying 100 Motion for Default Judgment for Default Judgment as to Kodiak Research, Ltd.; denying as moot 105 Motion for Leave to File Answer to Amended Complaint Upon Resolution of Jurisdictional Question by Kodiak Research Ltd. FURTHER ORDERING that BRP-Rotax and Kodiak shall file their responsive pleadings within 14 days of the date of this order. (cc: all counsel) (gc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 14-C-1189
BRP-POWERTRAIN, GMBH & CO. KG,
KODIAK RESEARCH, LTD.,
BOMBARDIER RECREATIONAL PRODUCTS,
and LEADING EDGE AIR FOILS, LLC,
DECISION AND ORDER
This is a products-liability case in which the plaintiff, Gregory Everett, suffered
personal injuries during a crash of his personal aircraft.
The plaintiff sued four
defendants, which I have been referring to as “BRP Inc.,” “BRP-Rotax,” “Kodiak,” and
“LEAF.” The case was originally assigned to Judge Rudolph T. Randa of this court.
While the case was before him, he granted motions to dismiss filed by BRP Inc., BRPRotax, and Kodiak. The dismissals were for lack of personal jurisdiction. The case then
proceeded on the merits against the remaining defendant, LEAF. At about this time,
Judge Randa became unable to preside over cases, and the case was reassigned to
After the reassignment, the plaintiff filed a motion asking me to reconsider Judge
Randa’s order granting the motions to dismiss. The motion was based, in part, on
discovery that the plaintiff had taken from LEAF, including the deposition of its owner,
who testified about the previously dismissed defendants’ contacts with Wisconsin. A
few months after the plaintiff filed this motion, and before I had decided it, the plaintiff
and LEAF entered into a settlement agreement that resolved the plaintiff’s claims
against LEAF. To implement the settlement, the plaintiff and LEAF filed a document
bearing the caption “Stipulation for Dismissal.” See ECF No. 94. This document stated:
IT IS HEREBY STIPULATED by and between Plaintiff Gregory
Everett and Defendant [LEAF], through their respective counsel, that any
and all claims against Defendant [LEAF] in the above-captioned case are
to be dismissed with prejudice and without costs to any party and that an
Order to that effect may be entered without further notice.
Id. The document was signed by the plaintiff’s counsel and LEAF’s counsel. Attached
to the document was a proposed order dismissing the plaintiff’s claims against LEAF. I
signed the proposed order on May 4, 2017, and it was docketed the same day. The
order, which is captioned “Order for Dismissal,” states:
UPON THE STIPULATION between the parties,
IT IS HEREBY ORDERED that all claims by Plaintiff Gregory
Everett against Defendant [LEAF], in the above-captioned matter are
dismissed with prejudice and without cost to either party.
ECF No. 95.
On July 7, 2017, I issued a decision and order granting, in part, the plaintiff’s
motion to reconsider Judge Randa’s order dismissing the other three defendants for
lack of personal jurisdiction. I granted the motion as to defendants BRP-Rotax and
Kodiak and denied the motion as to defendant BRP Inc. I also ordered BRP-Rotax and
Kodiak to file answers to the plaintiff’s complaint.
After I issued the order vacating Judge Randa’s dismissal of BRP-Rotax and
Kodiak, these defendants, citing Federal Rule of Civil Procedure 12(h)(3), filed briefs
“suggesting” that I lack subject matter jurisdiction over this action. In these briefs, the
defendants argue that the stipulation of dismissal concerning LEAF was, in effect, a
stipulation of dismissal of the entire action under Federal Rule of Civil Procedure
41(a)(1)(A)(ii). The defendants contend that the moment the plaintiff and LEAF filed the
stipulation, it had the effect of dismissing the entire case and divesting me of subjectmatter jurisdiction. Therefore, the defendants argue, my order granting the plaintiff’s
motion for reconsideration was a nullity, and I may take no further action on the merits
of the plaintiff’s claims against them.1
The defendants, in their suggestions, point out that a stipulation of dismissal
under Rule 41(a)(1)(A)(ii) is self-executing, meaning that it is effective the moment it is
filed and does not require a separate court order. I agree with the defendants on this
See Nelson v. Napolitano, 657 F.3d 586, 587 (7th Cir. 2011).
previously published a memorandum making this very point and informing the bar that I
would not sign proposed orders purporting to dismiss a case based on a previously filed
stipulation of dismissal or notice of voluntary dismissal under Rule 41(a). See Scott v.
Delbert Servs. Corp., 973 F. Supp. 2d 949 (E.D. Wis. 2013). But the issue here is not
whether a stipulation of dismissal under Rule 41(a) is self-executing—it clearly is. The
issue is whether the stipulation of dismissal filed by the plaintiff and LEAF, which does
At the same time that the defendants filed their suggestions, defendant Kodiak filed a
petition for a writ of mandamus or prohibition with the Seventh Circuit. On August 29,
2017, the Seventh Circuit denied the petition, with the following comment:
There remains a concrete case or controversy between the plaintiff and
the [two] reinstated defendants. The district court never entered a final
judgment under Fed. R. Civ. P. 54(b) with respect to those defendants.
Order in Appeal No. 17-2586.
not mention Rule 41(a), nonetheless qualifies as a stipulation of dismissal under that
In my order granting the motion for reconsideration, I addressed the effect of the
stipulation of dismissal. ECF No. 96 at 6 n.2. I concluded that the stipulation did not
qualify as a stipulation of dismissal under Rule 41 because it did not purport to dismiss
the entire action and also because it was not signed by BRP Inc., BRP-Rotax, and
Kodiak. This was in keeping with the text of the rule, which governs the dismissal of
“actions” (rather than claims or parties) and which requires the stipulation to be “signed
by all parties who have appeared.” BRP Inc., BRP-Rotax, and Kodiak had all appeared
as parties in the case (albeit for the limited purpose of contesting personal jurisdiction),
and thus I considered them “parties who have appeared.”
Kodiak and BRP-Rotax argue that I was mistaken in thinking that the stipulation
of dismissal did not purport to dismiss the entire action and that the stipulation had to be
signed by them and BRP Inc. As to the first point, they argue that the stipulation must
have applied to the entire action because, by the time it was filed, the only claim
remaining in the action was the claim against LEAF, which the stipulation purported to
dismiss. But this is not accurate. It is true that, at the time the stipulation was filed, the
plaintiff’s claims against all defendants other than LEAF had been dismissed. But the
BRP-Rotax and Kodiak rely heavily on the Third Circuit’s decision in State National
Insurance Company v. County of Camden, 824 F.3d 399 (3d Cir. 2016). That case
addresses the consequences of filing a stipulation of dismissal under Rule
41(a)(1)(A)(ii). However, that case does not address the question of what qualifies as a
stipulation of dismissal under that rule in the first place. Rather, the court took it as
undisputed that the stipulation filed in that case qualified as such a stipulation. See id.
at 406 (“The parties . . . filed a Stipulation of Dismissal under Rule 41(a)(1)(A)(ii), and
pursuant to that Stipulation, the parties agreed to voluntarily dismiss the case.”). Thus,
State National is not instructive on the main issue presented in this case.
dismissal of the claims against the other defendants was interlocutory—no judgment
had been entered in the defendants’ favor under Federal Rule of Civil Procedure
54(b)—which meant that those claims had not been finally resolved. Moreover, at the
time the stipulation was filed, a motion to reinstate those very claims was pending. That
motion and the claims it involved were undoubtedly parts of this action—what other
action could they have been a part of? Thus, at the time the plaintiff and LEAF filed the
stipulation of dismissal, this action still encompassed the claims against BRP Inc., BRPRotax, and Kodiak.
Because the claims against these defendants were still included in this action,
the stipulation dismissing the claims against LEAF was not a stipulation dismissing the
entire action under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). See Taylor v. Brown,
787 F.3d 851, 857 (7th Cir. 2015) (recognizing that notice or stipulation of dismissal
under Rule 41(a)(1)(A) may dismiss only the whole case; it cannot be used to dismiss
fewer than all claims in a suit); Berthold Types Ltd. v. Adobe Systems Inc., 242 F.3d
772, 777 (7th Cir. 2001) (same). Nor did I understand it to be one. As noted above, I
do not issue orders dismissing actions under Rule 41(a)(1)(A) because they are
superfluous. Scott, 973 F. Supp. 2d at 949. But I signed the proposed order to dismiss
LEAF because I knew that the stipulation was not self-executing under Rule 41(a)(1)(A),
as it purported to dismiss only one of the claims involved in this suit, not the entire
As to my alternative ground for finding that the stipulation to dismiss LEAF was
not a Rule 41 stipulation of dismissal, I am willing to allow that Rule 41 is ambiguous as
to what it means by “all parties who have appeared.” It is reasonable to interpret this
language, as BRP-Rotax and Kodiak do, as applying only to parties who have not
already been dismissed from the case as of the date the stipulation is filed.
reading of the rule is supported by the fact that parties who are dismissed from a case
usually are no longer considered “parties” for purposes of the federal rules.
example, Rule 5(a) requires service of papers on “every party,” yet it is unlikely that a
court would interpret this rule to require service on parties who have long been
dismissed from the case. But it is also reasonable to interpret the phrase “all parties
who have appeared” to include parties who have appeared in the case but have since
been dismissed by nonfinal orders. Dismissed parties once were parties, and if they
have appeared in the case, it is no abuse of language to describe them as “parties who
The defendants contend that my reading of the parties-who-have-appeared
language would produce absurd results, in that in years-long, complex, multi-defendant
litigation, the last settling defendant would have to track down and obtain written
consent from every defendant to have ever appeared in the case before the case could
be dismissed without a court order under Rule 41(a)(1)(A)(ii). But I do not find this
result absurd. Although the plaintiff and the last defendant could not use a stipulation of
dismissal to end the action without obtaining consent from the previously dismissed
defendants, the plaintiff could still file a motion to have the court dismiss the action
under Rule 41(a)(2), and the court could grant that motion without receiving the consent
of the previously dismissed defendants. Moreover, it makes sense to require a plaintiff
to obtain the consent of a previously dismissed defendant before he or she may
voluntarily dismiss the action. A dismissal under Rule 41(a) can be without prejudice. A
previously dismissed defendant may have obtained a dismissal on the merits—say
pursuant to a motion for summary judgment—but unless a judgment were entered in
that defendant’s favor under Rule 54(b), the dismissal would be nonfinal. If the plaintiff
and the remaining defendant thereafter stipulated to a dismissal of the action without
prejudice, the plaintiff could file a fresh action against the previously dismissed
defendant, and possibly the nonfinal order entered against that defendant would have
no preclusive effect in the new action. See Restatement (Second) of Judgments § 13
(1982). Thus, requiring the consent of the previously dismissed defendant prevents the
voluntary dismissal from causing prejudice to that defendant.
defendants from prejudicial voluntary dismissals is one of the purposes of Rule 41(a).
See 8 James Wm. Moore, Moore’s Federal Practice – Civil § 41.10 (Lexis 2017). It is
thus consistent with the rule’s purpose to require previously dismissed defendants to
sign a stipulation of dismissal of the action.
I also note that construing the plaintiff’s and LEAF’s stipulation of dismissal as
applying to the claims against BRP Inc., BRP-Rotax, and Kodiak would conflict with
Federal Rule of Civil Procedure 1, which instructs courts to construe the federal rules “to
secure the just, speedy, and inexpensive determination of every action and proceeding.”
The clear intent of the stipulation was to resolve the plaintiff’s claim against LEAF, and
only that claim. The stipulation and proposed order refers only to that claim. At the time
it was filed, the plaintiff’s motion to reconsider the dismissal of his claims against the
other defendants was pending, and he did not ask to withdraw that motion. Obviously,
then, the plaintiff did not intend to abandon his claims against these other defendants.
Construing the stipulation to have that effect would produce an unjust result and a trap
for the unwary, contrary to the directive in Rule 1 to construe the rules to secure the
“just” determination of every action. See, e.g., Laborers’ Pension Fund v. A & C Envtl.,
Inc., 301 F.3d 768, 777 (7th Cir. 2002) (avoiding construing federal rule in way that
creates trap for the unwary); Johnson v. Levy Org. Dev. Co., Inc., 789 F.2d 601, 606
(7th Cir. 1986) (noting that courts are to construe federal rules “liberally” and not turn
them into traps for the unwary). Indeed, the Seventh Circuit has implicitly held that
when a party mistakenly uses Rule 41(a) in an attempt to dismiss only some claims or
parties in a case, rather than the entire action, the court may construe the notice of
voluntary dismissal or stipulation of dismissal as a motion to amend the complaint to
drop the claim or party sought to be dismissed.
See Taylor, 787 F.3d at 857–58
(construing notice of voluntary dismissal of party as motion to amend the complaint to
drop the party). Here, that is essentially what I did when I granted the plaintiff’s and
LEAF’s request to have LEAF dismissed from the case.
Finally, even if I am mistaken about whether the stipulation of dismissal qualified
as a stipulation under Rule 41(a)(1)(A)(ii), it would not follow that I lacked subject-matter
jurisdiction to decide the plaintiff’s motion to reconsider. At the time the stipulation was
filed, the plaintiff’s motion to reconsider was pending, and the plaintiff filed that motion
under Federal Rule of Civil Procedure 60(b). In my order on the motion, I noted that no
final judgment had been entered against the defendants, and that therefore the motion
was not subject to the standards of Rule 60(b) motions. Instead, it was simply a motion
to reconsider a nonfinal order.
But if the defendants’ argument that the plaintiff’s
stipulation of dismissal resulted in the final termination of this action were correct, then
the motion would properly be construed as a motion for relief from judgment under Rule
60(b), because after the stipulation was filed the motion would be seeking relief from a
final judgment or order. The Seventh Circuit has held that a district court does not lose
jurisdiction to consider a Rule 60(b) motion following a voluntary dismissal of an action
under Rule 41(a).
Nelson, 657 F.3d at 589.
Moreover, if the motion had to be
construed as a Rule 60(b) motion, I would grant it because the motion was based on the
discovery of new evidence, see Fed. R. Civ. P. 60(b)(2), namely, the deposition of
LEAF’s owner, who testified to facts showing that BRP-Rotax and Kodiak were subject
to personal jurisdiction in Wisconsin.
For the reasons stated above, the defendants’ suggestion that I lack subjectmatter jurisdiction will be denied. Also before me are the plaintiff’s motions to hold
BRP-Rotax and Kodiak in default for failing to file an answer within 14 days of my order
reinstating them as parties.3 In briefing on these motions, the defendants state that the
plaintiff agreed to extend the deadline for them to respond to the complaint until August
7, 2017, and they note that they filed their “suggestions” regarding subject-matter
jurisdiction on that date.
They contend that, under Federal Rule of Civil Procedure
12(a)(4), they do not have to serve their answers until 14 days after the court acts on
their “suggestions.” Thus, they argue, they are not in default.
Under Rule 12(a)(4), a party who files a motion under Rule 12 does not have to
file a responsive pleading until 14 days after the court acts on the motion. So if the
defendants had filed motions under Rule 12, their argument that the time to file their
answers has not yet expired would be correct. One can quibble about whether the
Technically, the plaintiff filed motions for default judgments against these parties, but
the clerk has not entered either party’s default under Rule 55(a). Thus, I construe the
plaintiff’s motion as one to direct the clerk to enter the defendants’ defaults.
defendants’ “suggestions” qualify as Rule 12 “motions.” But whether or not they do, the
plaintiff has not been prejudiced by the defendants’ failure to file their answers until now.
A court has an obligation to police its own subject-matter jurisdiction, and I would have
addressed the defendants’ arguments about the effect of the stipulation of dismissal on
the court’s jurisdiction before allowing the case to proceed on the merits, even if the
defendants had filed answers.
Therefore, I will not direct the clerk to enter the
defendants’ default. Instead, I will grant the defendants 14 days from the date of this
order to file their responsive pleadings.
Accordingly, IT IS ORDERED that the defendants’ “suggestions” concerning
subject-matter jurisdiction (ECF Nos. 97 & 98) are DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motions for default judgments
(ECF Nos. 99 & 100) are DENIED.
IT IS FURTHER ORDERED that BRP-Rotax and Kodiak shall file their
responsive pleadings within 14 days of the date of this order.
FINALLY, IT IS ORDERED that Kodiak’s motion for leave to file its answer to the
amended complaint upon the court’s resolution of the jurisdictional question (ECF No.
105) is DENIED as MOOT.
Dated at Milwaukee, Wisconsin, this 11th day of October, 2017.
/s Lynn Adelman
United States District Judge
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