Opinion
CIVIL ACTION No. 01-2025-CM
May 13, 2002
MEMORANDUM AND ORDER
Pending before the court is defendant Georgia-Pacific Corporation's Motion to Reinstate and Consolidate (Doc. 14). Defendant Willamette Industries, Inc. joins in the pending motion (Doc. 16). Defendants seek the court to reinstate Case No. 01-2025, voluntarily dismissed by notice of plaintiff, and to consolidate that case with Case No. 02-2143, recently transferred to this court from the United States District Court for the District of Minnesota. As set forth below, defendants' motion is granted.
Background
Plaintiff originally filed this diversity products liability suit, numbered Case No. 01-2025, in this district court on January 17, 2001. Plaintiff's products liability claims arose from an eye injury plaintiff sustained while installing plumbing in a new home located in Johnson County, Kansas. Plaintiff sustained his injury while running copper plumbing between floor joists in the home. Plaintiff alleged that defendants Georgia-Pacific and Willamette Industries were responsible for the manufacture and distribution of the floor joists that caused him injury. Plaintiff's complaint raised claims sounding in negligence and strict liability.
Plaintiff's complaint raised the following claims: (1) Count 1 — Negligently Supplying Dangerous Instrumentality; (2) Strict Liability — Defective Product; and (3) Strict Liability — Failure to Warn.
On May 14, 2001 defendants moved to dismiss plaintiff's case, asserting plaintiff failed to timely file his complaint under the applicable two-year Kansas state statute of limitations. Rather than file a response to defendants' motion, plaintiff opted to file a Voluntary Dismissal Without Prejudice Pursuant to Fed.R.Civ.P. 41(a)(1)(i), thereby voluntarily dismissing his claims.
Subsequently, plaintiff filed a related complaint in the United States District Court for the District of Minnesota. In that complaint, plaintiff Netwig named the same defendants he named in Case No. 01-2025 — defendants Georgia-Pacific Corporation and Willamette Industries, Inc. — and asserted three identical claims against these defendants. In addition, in the Minnesota action plaintiff raised two related state law claims stemming from the events giving rise to his original negligence and strict liability claims. Defendants answered the complaint and filed cross-claims against each other.
In the Minnesota action, plaintiff raised as Counts 4 and 5, claims of breach of express or implied warranty and fraudulent misrepresentation.
Defendants then moved the Minnesota court to dismiss plaintiff's claims as untimely under a statute of limitations theory or, alternatively, moved to transfer venue in the case to the District of Kansas. Following briefing on defendants' Motions to Dismiss or in the Alternative to Transfer Venue, the District of Minnesota denied defendants' motion to dismiss and granted their motion to transfer venue. In denying their motion to dismiss, the Minnesota court found that Minnesota's five-year state statute of limitations applied to plaintiff's product liability claims, rather than Kansas's two-year statute of limitations. Accordingly, the Minnesota court found plaintiff's product liability claims were timely filed in that court. However, applying 28 U.S.C. § 1404(a), the Minnesota court found venue was more properly placed in the District of Kansas, and therefore transferred venue to the District of Kansas. The Minnesota case has now been docketed in this court as Case No. 02-2143. Recognizing the "circuitous route" plaintiff's case took, the Minnesota court noted that it viewed plaintiff's actions as "a flagrant example of forum shopping."
Defendants now ask the court to reinstate Case No. 01-2025 and consolidate the prior case with the recently transferred Case No. 02-2143. Defendants represent that this will "resolve any issue of an attempt to forum shop or waste the Court's time." (Defs.' Mem. at 2).
Motion to Reinstate/Vacate Dismissal Jurisdiction
Rule 41 provides "an action may be dismissed by the plaintiff without order of the court . . . by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs." Fed.R.Civ.P. 41(a)(1)(i). A voluntary dismissal under Rule 41(a)(1)(i) is effective upon filing and does not require judicial approval. Id. Upon filing of the notice of dismissal, the "action on the merits is at an end." Smith v. Phillips, 881 F.2d 902, 904 (10th Cir. 1989).
Generally, "[a]n unconditional dismissal terminates federal jurisdiction except for the limited purpose of reopening and setting aside the judgment of dismissal within the scope allowed by [Fed.R.Civ.P.] 60(b).'" Id. (citing McCall-Bey v. Franzen, 777 F.2d 1178, 1190 (7th Cir. 1985)). This is because a voluntary dismissal under Rule 41(a)(1)(i) "is a judgment, order or proceeding from which Rule 60(b) relief can be granted." Budanio v. Saipan Marine Tours, Inc., 22 Fed. Appx. 708, 710 (9th Cir. 2001); see also Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987) (noting Rule 41(a)(1)(i) dismissal operates as an adjudication on the merits, and therefore, constitutes a "final judgment" under Rule 60(b)).
Here, plaintiff's voluntary dismissal was effective upon filing. Although this dismissal effectively limited the court's jurisdiction over plaintiff's claims, the court does retain jurisdiction for the limited purpose of reviewing a Rule 60(b) challenge to the dismissal.
Rule 60(b)
The court construes defendants' motion as a motion seeking to vacate the voluntary dismissal under Rule 60(b). Although defendants' motion is captioned as a "Motion to Reinstate," defendants do reference the power of the court to "set aside" a voluntary dismissal under Rule 60. As set forth below, defendants' motion is granted on this basis.
As relevant here, Rule 60 provides that "[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for . . . any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). A district court has discretion to grant relief as justice requires under Rule 60(b). Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). However, such relief is considered "extraordinary." Id. In particular, Rule 60(b)(6) provides relief from judgment only in "extraordinary circumstances and only when such action is necessary to accomplish justice." Lyons v. Jefferson Bank Trust, 994 F.2d 716, 729 (10th Cir. 1993) (internal quotation omitted). "A litigant shows exceptional circumstances by satisfying one or more of Rule 60(b)'s six grounds." Van Skiver v. United States, 952 F.2d 1241, 1243-44 (10th Cir. 1991).
Fed.R.Civ.P. 60(b) provides: "[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment."
Defendants assert that plaintiff's attempt to impermissibly forum shop merits Rule 60(b) relief from the voluntary dismissal entered in Case No. 01-2025. In response to defendants' contention, plaintiff asserts that his suit filed in Minnesota was "legal and proper" because "[j]urisdiction was proper in Minnesota pursuant to general jurisdiction and consent." (Pl.'s Mem. at 2). Plaintiff does not provide the court with any indication of why he chose to dismiss his claims in Case No. 01-2025 and then to re-file them (with two additional related claims) in another venue with jurisdiction over the parties. The mere fact that another court has jurisdiction over plaintiff's claims does not address whether plaintiff's procedural tactics constitute impermissible forum shopping. Moreover, plaintiff does not address why he failed to serve defendants in Case No. 01-2025 within the 90 days referenced in Kan. Stat. Ann. § 60-203(a). Accordingly, the court is left to infer that plaintiff did not have "good cause" for his delay in serving defendants in Case No. 01-2025.
"Forum shopping occurs when a litigant selects a forum with only a slight connection to the factual circumstances of his action, or where forum shopping alone motivated his choice." Riviera Trading Corp. v. Oakley, Inc., 944 F. Supp. 1150, 1158 (S.D.N.Y. 1996) (citation omitted). No mechanical test is available to determine whether a party's action constitutes impermissible forum shopping. Instead, the court is required to weigh the circumstances presented and the equities involved in each particular case. See e.g., Fox v. Maulding, 16 F.3d 1079, 1082 (10th Cir. 1994) (considering whether a party's opposition to court's abstention constitutes impermissible forum-shopping); Travelers Indem. Co. v. Madonna, 914 F.2d 1364, 1370-71 (9th Cir. 1990) (same).
Considering the overlapping nature of the claims raised in Case No. 01-2025 and those raised in Case No. 02-2143, defendants' pending challenge to the timeliness of plaintiff's product liability claims under Kansas law, and the more generous statute of limitations period provided for product liability claims under Minnesota law, the court finds it is a reasonable conclusion that plaintiff's decision to voluntarily dismiss his claims in Case No. 01-2025 and to re-file them in the District of Minnesota was motivated "solely or largely" by impermissible forum shopping. See Riviera Trading Corp., 944 F. Supp. at 1158 (finding that partial motivation does not constitute impermissible forum shopping).
At this point, the court declines to address the issues raised in defendants' motion to dismiss in Case No. 01-2025.
Rule 60(b) allows the court to address impermissible forum shopping, such as that presented here. This is true because Rule 60(b)(6) provides the court with "a `grand reservoir of equitable power to do justice in a particular case.'" Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990) (quoting Pierce v. Cook Co., 518 F.2d 720, 722 (10th Cir. 1975) (internal quotation marks and citation omitted)). Accordingly, the court finds defendants have met their burden to show that "extraordinary circumstances" are present in this case and that vacating plaintiff's voluntary dismissal is "necessary to accomplish justice." Lyons, 994 F.2d at 729. The court hereby vacates plaintiff's Rule 41(a)(1)(i) voluntary dismissal in Case No. 01-2025 and reinstates the case.
Motion to Consolidate
Defendants next ask the court to consolidate the reinstated Case No. 01-2025 with the transferred Case No. 02-2143. Defendants assert that consolidation will "put the parties in exactly the same position they were in before plaintiff [voluntarily dismissed Case No. 01-2025 and refiled his claims in the District of Minnesota.]" (Defs.' Mem. at 2).
Under Fed.R.Civ.P. 42(a), a court may order actions pending before it consolidated when they "involv[e] a common question of law or fact." Here, the court finds consolidation is appropriate. As noted, Case No. 01-2025 and Case No. 02-2143 involve identical parties. In both cases, plaintiff Netwig raises product liability claims against defendants Georgia-Pacific and Willamette Industries. Three of the claims raised in the two actions are identical. Moreover, the remaining two claims raised in Case No. 02-2143 arise out of the same set of facts as the initial three claims. Accordingly, the court finds the questions of law and fact raised in Case No. 01-2025 and in Case No. 02-2143 are common enough to merit consolidation. Defendants' motion is granted on this basis.
Finally, the court recognizes the conflict that arises with consolidation of these two cases. Specifically, consolidation raises the issue of whether plaintiff's claims are untimely under Kansas law, as asserted by defendants' pending motion to dismiss in Case No. 01-2025, or whether the Minnesota court's order finding plaintiff's claims timely under Minnesota law in Case No. 02-2143 should govern the course of this case. Upon consolidation, the court anticipates the parties will submit briefing on the proper application of the limitations issue in this case. The court hereby orders the parties to consult regarding the appropriate manner in which to present this issue to the court for ruling. Thereafter, the parties shall submit briefing in the format agreed upon on or before June 14, 2002.
Order
IT IS THEREFORE ORDERED that defendant Georgia-Pacific Corporation's Motion to Reinstate and Consolidate (Doc. 14), joined in by defendant Willamette Industries, Inc. (Doc. 16) is granted. The court hereby orders that Case No. 01-2025 be reinstated and consolidated with Case No. 02-2143. On or before June 14, 2002, the parties shall submit briefing on the proper application of the limitations issue in this case in the format agreed upon between the parties.
IT IS SO ORDERED.