METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff-Appellant,
Metropolitan Federal Bank of Minnesota, F.S.B.;
Metropolitan Federal Bank, F.S.B., Plaintiffs,
v.
W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellees,
United States Gypsum Corporation, Defendant.
METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff-Appellee,
Metropolitan Federal Bank of Minnesota, F.S.B., Plaintiff-Appellee,
Metropolitan Federal Bank, F.S.B., Plaintiff,
v.
W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellants,
United States Gypsum Corporation, Defendant.
METROPOLITAN FEDERAL BANK OF IOWA, Plaintiff,
Metropolitan Federal Bank of Minnesota, Plaintiff-Appellant,
Metropolitan Federal Bank, Plaintiff,
v.
W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellees,
United States Gypsum Corporation, Defendant.
METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff,
Metropolitan Federal Bank of Minnesota, F.S.B., Plaintiff-Appellee,
Metropolitan Federal Bank, F.S.B., Plaintiff,
v.
W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellants,
United States Gypsum Corporation, Defendant.
Nos. 92-1769, 92-1807, 92-2181, 92-2329.
United States Court of Appeals,
Eighth Circuit.
Submitted Feb. 19, 1993.
Decided July 27, 1993.
Rehearing Denied Sept. 8, 1993.
Daniel A. Speights, Hampton, SC, argued (Steven C. Lian, Minot, ND, and Jon M. Arntson, Fargo, ND, on brief), for appellant.
Kell M. Damsgaard, Philadelphia, PA, argued (Dennis J. Valenza of Philadelphia, PA, and Sandra Wallace Napolitano, Thomas B. Caswell, and Brooks F. Poley, Minneapolis, MN, on brief), for appellee, U.S. Gypsum.
Allen W. Hinderaker, Minneapolis, MN, argued (Hugh V. Plunkett, III, and Keith J. Halleland, on brief), for appellee, W.R. Grace & Co.
Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.
BOWMAN, Circuit Judge.
Metropolitan Federal Bank of Minnesota appeals the decision of the District Court1 to grant summary judgment to W.R. Grace & Company and W.R. Grace & Company--Connecticut2 (collectively W.R. Grace) on Metropolitan's claims for recovery of asbestos abatement costs. W.R. Grace cross-appeals, challenging the District Court's decision to extend the time to file the notice of appeal and the decision to grant Metropolitan's motion for voluntary dismissal of the claims related to buildings located in states other than Minnesota. We affirm.
We first address W.R. Grace's contention that we should dismiss this appeal for lack of jurisdiction. The District Court granted summary judgment in favor of W.R. Grace on February 28, 1992.
The decision whether to grant such a motion is entrusted to the district court by rule, and we will reverse only if we conclude the district court abused its discretion in finding excusable neglect. See Vogelsang v. Patterson Dental Co.,
W.R. Grace first argues that the misnomer because of clerical error rendered the first notice of appeal out of compliance with Federal Rule of Appellate Procedure 3(c), and therefore the need for an extension of time to file a notice of appeal could not be the result of excusable neglect. W.R. Grace relies on a Supreme Court opinion as support for this proposed per se rule. In Torres v. Oakland Scavenger Co.,
Ordinarily, excusable neglect under Rule 4(a)(5) is found, and an extension of time to file a nоtice of appeal is appropriate, when the appealing party has not learned of the entry of judgment in a timely manner. Benoist v. Brotherhood of Locomotive Eng'rs,
Although we think the excusable nature of the neglect here is arguable, we cannot conclude that it was an abuse of the trial court's power to find excusable neglect. Clearly, filing the notice of appeal with the wrong name was an oversight, but we do not think it a "palpable oversight" that requires us to reverse the District Court's decision. Vogelsang,
We also believe it is significant that Metropolitan filed a timely notice within the first thirty days, albeit naming a party incorrectly. We are mindful that the filing of a notice of appeal that complies with Federal Rule of Appellate Procedure 3 is jurisdictional and that we cannot assume jurisdiction over an appeal improperly filed, regardless of the lack of prejudice to the party challenging the notice. See Manis v. Sterling,
Finding that we have jurisdiction over this appeal, we proceed to address the issues Metropolitan has raised.
Metropolitan filed suit in the District Court under the court's diversity jurisdiction on June 29, 1990, seeking recovery of its costs for the abatement of asbestos-containing building materials found in some of its facilities. The facilities relevant to this issue on appeal were substantially completed by 1975 and acquired by Metropolitan in 1986 and 1988. The District Court applied the Minnesota statute of limitations and repose for actions arising out of the construction of improvements to real property to bar Metropolitan's cause of action. Minn.Stat. § 541.051 (1992). The court, applying the repose provision of Section 541.051, determined that Metropolitan's action was time-barred because it was started more than ten years after substantial completion of the buildings. Metropolitan, however, charges W.R. Grace with fraud and contends that the repose period should be tollеd.
Section 541.051 bars actions started outside the statutory limits "[e]xcept where fraud is involved." Id. § 541.051(1)(a). "[I]f the defendant has by fraud prevented the plaintiff from discovering the defective and unsafe condition within [the repose period], the statute is tolled until the plaintiff could, by reasonable diligence, have discovered the defective condition." Wittmer v. Ruegemer,
We reject W.R. Grace's suggestion, made without relevant supporting authority, that "fraud" here means something other than common law fraud, specifically, that the term means only fraudulent concealment. The statute does not provide a definition limiting the scope of "fraud" to fraudulent concealment. Nevertheless, wе agree with W.R. Grace that the District Court did not err in determining that there were no genuine issues of material fact on the fraud question. See Fed.R.Civ.P. 56(c). Metropolitan does not contend that W.R. Grace made affirmative representations to Metropolitan. (Indeed, it is foreclosed from doing so as the parties had no dealings when the buildings at issue were constructed; Metropolitan acquired those buildings years later and does not claim W.R. Grace communicated anything that would toll the statute.) Instead, Metropolitan claims that "fraudulent nondisclosure" falls within the statutory meaning of "fraud," and that it presented sufficient evidence of such nondisclosure on the part of W.R. Grace to create a question of material fact and avoid summary judgment. The District Court held that Metropolitan had not come forward with any evidence of fraudulent concealment related to Metropolitan's Minnesota buildings, and that failure to disclose or mere silence is insufficient to toll the limitations period.
Under Minnesota law, nondisclosure will not constitute fraud unless there is "a suppression of facts which one party is under a legal or equitable obligation to communiсate to the other, and which the other party is entitled to have communicated to him." Richfield Bank & Trust Co. v. Sjogren,
Metropolitan does not contend that W.R. Grace revealed some information and concealed other material facts; in fact, as noted supra, there was no communication concerning these buildings between the parties during the repose period. Further, Metropolitan alleges no fiduciary relationship with W.R. Grace. Finally, from the record before us, we discern no "special knowledge" on the part of W.R. Grace that it failed to disclose to Metropolitan as owner of the asbestos-containing buildings. There was no conceivable relationship between the parties regarding these buildings until 1986 and 1988, long after construction of the buildings was completed with the asbestos-containing materials incorporated therein. By that time, information Metropolitan alleges should have been disclosed was a matter of widespread public knowledge, and if Metropolitan did not have actual knowledge of the risks of asbestos exposure, then it should have known of those risks. We hold there were no "special circumstances" here in any alleged failure on the part of W.R. Grace to disclose information to Metropolitan that would constitute fraud and would entitle Metropolitan to the benefits of equitable tolling. Consequently, the District Court correctly held that under Minnesota law this action was time-barred.
Metropolitan contends, however, that its suit was begun within the time permitted by the Minnesota statute reviving or extending actions for recovery of asbestos abatement costs. Minn.Stat. § 541.22 (1992) (providing that a revived or extended asbestos abatement action otherwise barred "may be begun before July 1, 1990"). Metropolitan argues that it "began" its lawsuit on June 29, 1990, upon the filing of the complaint. W.R. Grace counters that the suit was not "begun" until it was "commenced," that is, until defendants were served, which was after July 1, 1990. See Minn.R.Civ.P. 3.01. We recently considered and rejected the same argument Metropolitan now advances in another asbestos abatement case with similar facts. Concordia College Corp. v. W.R. Grace & Co.,
Turning to W.R. Grace's cross-appeal, we consider W.R. Grace's contention that the court erred in granting Metropolitan's motion made pursuant to Federal Rule of Civil Procedure 41(a)(2) to voluntarily dismiss from its suit the claims for its non-Minnesota buildings. That motion was not made until after W.R. Grace's motion for summary judgment, with its asserted statute of limitations and repose defenses, was filed. Further, by the time Metropolitan made its motion, another judge in the District of Minnesota had barred (in the Concordia case mentioned above) a similar action on statute of repose grounds. W.R. Grace claims, and Metropolitan does not deny, that Metropolitan sought dismissal of its non-Minnesota claims to avoid the res judicata effect of a decisiоn adverse to Metropolitan on statute of repose or limitations grounds.
The District Court granted Metropolitan's Rule 41(a)(2) motion for dismissal of the non-Minnesota claims without prejudice, but with the condition that all discovery be available for use in any subsequent action concerning the dismissed properties. Further, the court ordered Metropolitan to reimburse W.R. Grace for the cоsts and fees W.R. Grace incurred for work done in defense of the non-Minnesota claims that would not be relevant in a subsequent action on those claims. W.R. Grace, however, claims legal prejudice in that, with respect to Metropolitan's non-Minnesota claims, W.R. Grace has lost the asserted res judicata effect that the dismissal of this action otherwise may have had.4
We may reverse a district court's decision on a Rule 41(a)(2) motion only if we find the court abused its discretion. Paulucci v. City of Duluth,
W.R. Grace argues that its pending summary judgment motion should have barred voluntary dismissal here. While a pending motion for summary judgment is a factor the court may take into account when considering whether to grant a motion for voluntary dismissal, it is not by itself dispositive. See Paulucci,
W.R. Grace urges us to adopt a per se rule, i.e., a rule stating that the prejudice to the nonmoving party of losing a statute of limitations defense as the result of a Rule 41(a)(2) dismissal always bars such a dismissal. We do not disagree with this as an abstract proposition. Voluntary dismissal under Rule 41(a)(2) should not be granted if a рarty will be prejudiced by the dismissal, Garfield v. Kansas City S. Ry.,
The problem with W.R. Grace's argument is that it has failed to show legal prejudice. There is no indication that W.R. Grace made any attempt to resolve the conflict of laws issue as to whether Metropolitan's claims concerning buildings located outside Minnesota's borders are governed by the statute of limitations of Minnesota rather than by the statute of limitations of the state where the buildings are located. See supra note 4. Without that determination, W.R. Grace could not demonstrate the validity of the Minnesota statute of limitations defense as to the non-Minnesota claims. Therefore, W.R. Grace failed to show that it was prejudiced by the loss of the Minnesota statute of limitations defense to the non-Minnesota claims, since under Minnesota's choice-of-law rules those claims may be governed by the statute of limitations of another state under which they may not be time-barred. In short, W.R. Grace did not even attempt to demonstrate to the District Court that the non-Minnesota claims were governed by the Minnesota statute of limitations or, if governed by the statute of limitations of some other state, were also time-barred under the latter. W.R. Grace thus did not even come close to making the requisite showing of prejudice.
The District Court therefore had broad discretion to grant or deny Metropolitan's motion and was free to consider the full range of factors relevant to the exercise of that discretion. We note that Metropolitan did not blatantly forum shop by filing suits simultaneously in multiple jurisdictions, as was the situation in a series of cases cited by W.R. Grace that did not even involve dismissal under Rule 41(a)(2). See, e.g., Steve D. Thompson Trucking, Inc. v. Dorsey Trailers, Inc.,
We have taken with the case Metropolitan's motion to strike portions of W.R. Grace's September 8, 1992, letter to this Court that purportedly was submitted pursuant to Federal Rule of Appellate Procedure 28(j). We grant the motion as we find that the letter does not comply with the limitations set forth in Rule 28(j).
The judgment of the District Court is affirmed.
Notes
The Honorable Donald D. Alsop, then Chief United States District Judge for the District of Minnesota, now Senior United States District Judge for the District of Minnesota
United States Gypsum Company was a defendant when this suit was filed. On April 29, 1993, we entered an order granting a joint motion for voluntary dismissal of United States Gypsum Company
Because of our holding, we do not consider Metropolitan's contention that the notice as originally filеd complied with Federal Rule of Appellate Procedure 3 since all of the Metropolitan Federal Banks have merged and each now does business as "Metropolitan Federal Bank, f.s.b."
We do not imply by our holding that a choice of law analysis necessarily would have resulted in the application of the Minnesota statutes of limitations, repose, or revival to the non-Minnesota claims had those claims been adjudicated in the District Court. This issue is not before us and we express no opinion with respect to it