*1 reason, if For the same even Chalmer his
Hayes’s attorney clearly pressed had argument Clause the dis
Confrontation ruling
trict would have to be beyond a reasonable
considered harmless
doubt, Dela even it was erroneous. See Arsdall, 673, 684, 106
ware Van U.S. (1986) (conclud
S.Ct.
ing that a violation of the Confrontation require
Clause does not reversal of a con “assuming damaging po
viction if that the fully
tential of the cross-examination were
realized, reviewing might nonethe say
less that the error was harmless be doubt”).
yond a reasonable summary, Hayes because Chalmer
would not be entitled to relief even we
were to conclude that rights his under the violated,
Confrontation Clause were
question of whether the district court’s
ruling fact violated the Confrontation
Clause is one we need and do not
address.
III. CONCLUSION above,
For all of the reasons set forth judgment
we AFFIRM the of the district
court. DUFFY; Duffy,
Stephen E. Ann Sue
Plaintiffs-Appellants, COMPANY,
FORD MOTOR
Defendant-Appellee. 98-5950, 98-6112, 98-6746,
Nos. 99-5017. Appeals,
United States Court of
Sixth Circuit.
Argued: Dec.
Decided and Filed: June *2 briefed), M. Ardis (argued
Patrick (briefed), Estep M. AR- Garrett WOLFF DIS, Tennessee, Memphis, Appellants. briefed), (argued Allen Mickus Lee (briefed), WHEELER, Paul F. Huitín Denver, KENNEDY, Colorado, TRIGG & (briefed), BAKER, Marcum Stephen A. DONELSON, BEARMAN & CALD- Huntsville, WELL, Tennessee, Appel- lee. MOORE, BATCHELDER and
Before: O’MALLEY,* Judges; Circuit District Judge. J.,
MOORE, opinion delivered BATCHELDER, J., joined. in which O’MALLEY, 635-39), (pp. D.J. delivered a separate part opinion concurring dissenting part.
OPINION MOORE, KAREN NELSON Circuit Judge. E. Ann
Stephen Duffy Duffy and Sue (“the Duffys”), plaintiffs-appellants, voluntarily personal injury dismissed their defendant-appellee, against lawsuit * Ohio, O’Malley, sitting designation. The Honorable McDonald Kathleen District of Judge United States District for the Northern rescheduling, the trial (“Ford”), repeated After Company Motor Ford January 1997. On the commenced on trial. The written day of third trial, Duffys sought day third later days several order entered testimony of two wit- voluntary dismissal: introduce on the two Feaheny, a former Thomas J. litigation nesses: Duffys pay that- the *3 testify to as to the fees, engineer Ford who was costs, if the case including attorney and the instability design of the Bronco’s- from the refiled; rulings that the and over; to roll and Offi- evidentiary propensity vehicle’s (including most original Mruk, police investigator summary Memphis cer a grant of partial and a rulings as to whether give opinion the who was to an the refiled action as judgment) govern a at Duffy wearing seat belt Duffys refiled William was case. When the law of the later, hearing, of the accident. After year the time one approximately their case e the district court decided to exclude it without the court dismissed th district witnesses, testimony finding of those two were unable Duffys the prejudice because testimony pass did not the Duffys ap Feaheny’s now that costs. The not the dis Daubert test and that Mruk could imposed by peal. the conditions usage, as to seat belt expert opinion dis an in with the first court connection trict him had not listed that, Duffys unique under the because missal. We hold case, pretrial in final or- witness the district of this circumstances rulings, wake of these failing der. court abused its Duffys moved Duffys themselves— whether consider to Federal Rule pursuant their case attorneys respon than their rather —were 41(a)(2). Ford did trial. Civil Procedure conduct of the for the dilatory sible but stated that was oppose the motion it was an abuse of dis also hold that We at forego ... costs.” J.A. willing costs “not litigation those impose cretion to 327(Tr.). orally granted court case The district original the law the apply and to that the agreed with Ford the motion giving without to the refiled case for Ford’s responsible Duffys those would notice of sufficient to refile. Some should choose to with costs allowing opportunity them an between the district prior to en discussion ensued motion to dismiss draw their Therefore, Duffys’ regarding- counsel and the we court tering the first dismissal. include those costs would order of dis whether the district court’s VACATE fees, was not resolved question RE but the and the related orders that time. court to reconsider MAND for the district opinion. of this rulings light
its 24, 1997, the district January On Duffys’- granting order a written issued I. BACKGROUND on the condition motion costs litigation Ford for its compensate products filed this Duffys originally action and to refile the they choose in federal court should liability against suit Ford during made rulings state- February alleging several Upon a refiled case. apply would the death of their case arising law claims out of motion, court amended son, in an Ford’s Duffy, who was lolled William litigation clarify that that order to II collided with when his Bronco accident order in the dismissal mentioned The dis- “costs” vehicle and rolled over. another fraud, attorney fees incurred those Duffys’ included trict court dismissed in a sub- recouped not be claims that could misrepresentation Ford deception, and court declined action. The district judg- sequent grant summary through partial those liti- amount of Ford, to calculate the total leaving ment however, time, propos- at that gation liability claims and strict negligence if and when to do so ing instead trial. complaint. Facing at- dismissal of their refiled case refiled their order, inability but due to their tempted appeal order, held, unpublished stay in an that it filed a motion to Order, appealable. See Case No. enforcement of the district court’s order was not 1997). 19, 1998, Sept. Specifi- June which was denied Cir. August the district court’s order dated 1998. On cally, we noted October 14,1998, Duff- scope general fell within the the district court denied the order appeal ys’ rule that cannot an order motion for reconsideration of that Au- order, that, gust holding granting a dismissal without because already had a notice appeal we added filed prejudice. case, pending in the appeal premature payable jurisdiction amount of fees to without to consider the motion. since the *4 yet specified. not been then 14 appealed the defendant had The October corresponding judgment order and the dis- 12, 1998, January Duffys, repre- On missing refiled action. their counsel, their by sented new recommenced argue The now that the district against Ford in Tennessee state requiring court’s orders them to pay subsequently court. Ford removed fees and the law case, reassigned and it was to the district of the case on the refiled action caused judge presided original who had over the legal them im- prejudice are therefore 11, case. In an order entered on June mediately appealable under the law of the 1998, assessed Ford’s they Sixth Circuit. claim non-overlapping litigation at that the imposed by terms and conditions $98,791.40 and informed the the district court amounted to an abuse of must that amount within thirty discretion. days or their complaint. suffer dismissal of also ordered that all the II. ANALYSIS rulings from the action would be the law of the case in the refiled Appealability A. of the District Court’s except permitted that the Orders to name one in additional the re- Ford argues that the district court’s or- 19,1998, filed action. response On June in granting Duffys’ voluntary-dis- ders reconsideration, to Ford’s motion for immediately missal motion are not ap- adjusted district court that amount adverse, pealable, because are not $126,481.09, finding that the court had involuntary judgments. The Duffys, by in its initial erred calculation. The contrast, argue appel- that this court has timely appealed from rulings. those Ford jurisdiction, late because the terms and subsequently moved to ap- dismiss that imposed voluntary on their dis- peal, arguing again that the Duffys were by them caused trying appeal their own dis- legal prejudice. missal and that Sixth precedent Circuit permit does not such appeals. A Sixth The general plaintiff rule is that a panel Circuit denied requests the motion but asked who granted and is parties jurisdictional to address the dismissal without prejudice under Federal Order, 41(a)(2) issues in their appellate briefs. See Rule of Civil Procedure cannot (6th 3, dismissal, Case Nos. appeal Cir. Nov. because it is not an 98-5950/6112 1998). involuntary judgment.1 adverse Scholl See (2) provides, pertinent part, By Rule 41 Except provided Order of Court. (1) paragraph of this subdivision of this (a) Voluntary Dismissal: Effect Thereof rule, an action shall not be dismissed at the
plaintiff's
save
instance
order of the
627
697,
claims,
Corp.,
plaintiff
F.2d
700 tiffs state law
and the
v.
Oil
327
Felmont
(6th Cir.1964);
subsequently
claim
Wright
Alan
&
dismissed its federal
9 Charles
Miller,
voluntarily.
plaintiff
Because
had vol-
Practice and
Arthur R.
Federal
untarily
held
2376,
dismissed the
this court
§
at
(Supp.1999).
Procedure
93
Sev
plaintiff
prior
that the
could not
appeal
recognized
exception
eral
circuits
claims,
ruling
be-
however,
dismissing
state-law
of nonappealability,
to this rule
ruling
prevent
plain-
cause that
did not
“legal
prej
when the
has suffered
again.
bringing
tiff from
suit
See id.
udice” from the conditions
(“[Wjhile the
of the state
395
acquiesced
district court
has not
adjudication
precluded
claims
their
Belle-Midwest,
See
Inc.
those conditions.
lawsuit,
preclude
merits
it did
Property
Ins.
Missouri
& Cos.
Guar.
court.”).
adjudication
in a
state
(8th
977,
Cir.1995);
Ass’n,
F.3d
978
56
out
pointed
court also
that the dismissal
Comm’rs, McGregor v. Board
F.2d
effect,
judicata
no
had
res
even
federal
(11th Cir.1992); Unioil,
1017, 1021
Inc. v.
prejudice.2
because was without
Co.,
(9th
548,
E.F. Hutton &
F.2d
id.;
LeCompte
Chip,
See
see also
v. Mr.
Cir.1986),
denied,
822,
cert.
484 U.S.
(5th
Inc.,
Cir.1976) (de-
F.2d
(1987);
S.Ct.
98 L.Ed.2d
Yoffe
scribing legal prejudice
ruling
as a
Indus., Inc.,
Keller
“severely
abil-
eireumscribe[s]”
denied,
Cir.1978), cert.
*5
440 U.S.
suit);
ity
bring
to
another
also Boland
see
1231,
(1979);
9
L.Ed.2d
S.Ct.
Cir.1997);
Engle,
113 F.3d
Miller,
§
at
Wright
supra,
&
93.
Belle-Midwest,
at
56 F.3d
978.
suggests
in this
The case law
circuit
that
recognize
excep
this court would
a similar
Duffys argue
the terms
The
that
Management
tion. See
Investors
Unit
imposed by
conditions
the district
Workers,
ed
610 F.2d
Mine
severely
court are
cir
unreasonable and
(6th Cir.1979); Scholl,
at
327 F.2d
700.
ability
again.
to bring
cumscribe their
suit
Nonetheless, the
condi
obtaining
respect
attorney-fees
standard for
With
to
tion, the
Duffys argue
they
of a
dismissal without
that
are unable
review
one,
are
prejudice
fairly
is a
and the
to
those fees and
therefore effec
stringent
tively
in
The
plaintiffs
re-filing
not met it
this case.
In
barred from
their suit.
Scholl,
supported by the fact
suggested
argument
this court
that the terms
is
make
imposed by
that
courts have hesitated to
conditions
some
41(a)(2)
categorical
what kinds of
appeal-
court under Rule
statements about
legal
stat
they
prejudice,
amount to
able
were unreasonable. See
effect,
ing that
rather than the
Management
requiring Ford’s costs analogize We find it useful to the instant refiling, and we remand for recon- 41(b) case to dealing those cases with Rule sideration in light holding. of this involuntary dismissals. district Herring Whitehall, City case, 804 court’s actions in the instant as in the (8th Cir.1986), F.2d 464 the Court of Ap- involuntary case of prej- dismissal with peals Eighth udice, for the Circuit held that it brought about the severe re- was an abuse of discretion for the depriving sult of the plaintiffs day of a require pay attor- court to resolve their claims on the merits. ney fees before could refile Cross, their case See Coleman v. American Red considering Cir.1994). without whether they Therefore, were re- F.3d sponsible for the defendants’ wasted costs. while recognizing freely case, In that granted had chose their counsel and are consequently plaintiffs’ motion for a dis- responsible for most decisions made missal due to their unprepared- counsel, counsel’s we nonetheless believe ness, on the condition that the plaintiffs’ in this particular where the counsel defendants’ fees and costs necessarily were not even aware of *8 refiled, if plaintiffs the but if plaintiffs the the by choices faced their counsel and retained new counsel—which they did— given were insufficient possi- notice of the Herring 4. The culpable court further stated pay. but unable to See id. at 468 n. agree "[w]hen conditions for a Rule 41 7. We Duffys’ ability do not that the to nonsuit, inquire the pay district court must into play Ford’s should a role in the moving party's ability perform the to the con- district court's determination of whether the ditions, particularly party alleges when the Duffys er, he or the Thomases are at fault. Howev- satisfy cannot cumstances, the responsible conditions. In some cir- party may because the ulti- costs, mately pay failure to do so be an abuse be unable to Ford's we note result, of discretion.” Id. at 468. As a the that the district court should consider the court ordered the district possibility court on remand to of alternative solutions that would plaintiffs' take into ability pay account the goals protecting to meet the of both Ford and the defendant's costs ensuring and to consider Duffys, they alterna- that the if are blame- less, plaintiffs tive measures if the are found deprived day to be are not of their in court.
631 they those choices, the if found the withdraw motion those consequences of ble should onerous. Marlow than their clients to be too See rather conditions Thomases to Strawn, 300, Thomases are to if the 19 305 pay & F.3d be v. Winston id. Cir.1994) costs. See (7th (“A for Ford’s wasted blame label court should not yet as a and condition not something term the in this is evidence case There party opportunity the affected afford blame primarily to Duffys’ counsel were his making his before options consider to requesting of necessity the for decision.”); above, Lau v. Glendora Sch. dismissal, and, the as discussed Unified (9th Cir.1986); Dist., 929, first F.2d dismissal of the claim that the cf. Co., with to a dismissal equivalent Corp. was v. Transamerica Ins. GAF they pay (D.C.Cir.1981); Scholl, are unable to because prejudice, F.2d at concern the heart (“There costs. The Ford’s no requirement at 700 innocent Herring and Coleman—that entry appellant agree the to the to lightly be forced should not plaintiffs available order. It was an alternative incompe- by their the costs created bear proceeding appellant to lieu counsel, ulti- not the cost especially tent trial.”). Particularly given the size losing day in they bear is their mately costs, to appears signifi be a Ford’s there the Duff- applicable to court—is therefore have likelihood that the would cant However, reject Duffys’ we ys’ case. for-voluntary their motion dis withdrawn ar- suggestion, at oral appellate counsel’s missal, the relevant given had been court has made that the district gument, so. opportunity to do information and trial Duffys’ “finding” specific for a request faced with the When Although incompetent. counsel 41(a)(2) voluntary dismissal under Rule mention Thomases’ court did district request Ford’s and orders, process in one of its due ineptness taken to deter steps should have require to that the Thomases appears approximate costs for which mine heard be- and an be opportunity notice responsible would could them require the district court fore dismissing and granting motion See, e.g., Herring, 804 Ford’s fees. have been then would jury. 468.5 F.2d at accept to decide whether forced that it was an abuse We also hold or to with and dismiss the case conditions to wait for the district court the motion. draw the costs of 1998 to determine until June vacate district court’s We therefore responsi for which refiled action and dismissing orders moved At the that the time ble. fees, pay Ford’s requiring voluntarily to dismiss we remand for and specific informed of the have been should remand, rulings. its On placed reconsider that would be to assess is directed given opportunity Alyeska. Alyeska reading of argument ject Heckethom's persuaded Ford’s 5. We are says nothing the allocation of costs authority to about the district court is without clients, attorneys but rather attorney between require the Thomases provide 41(a)(2). courts cannot merely holds that the See under Rule Heckethorn fees statu payment fees without Corp., Cir. 992 F.2d Siman excep authority, 1993). tory with certain narrow Alyeska Pipeline Relying primarily on Alyeska, U.S. 95 S.Ct. Soc’y, tions. See 421 U.S. Co. v. Wilderness Serv. *9 1612, (1975), Supreme has Court 44 141 the Court S.Ct. L.Ed.2d attorneys, authority over that a court's stated Appeals the Ninth Circuit stated authority impose attorney fees including to "al its courts cannot that the federal Heckethom them, authority great as its cost-bearing "is at least created on system of ter the uniform Pip Heckethorn, Roadway Express, v. litigants.” Inc. 242 Congress.” F.2d at over By 992 2455, 752, 766, er, Tustin, 65 S.Ct. 447 U.S. 100 City (quoting 885 Zambrano However, (1980). Cir.1989)). 1473, re L.Ed.2d we obligation pay to apportion Finally, we note our disagreement with Duffys costs between the and the Thom- the dissent’s assertion that Fed.R.Civ.P. 41(d) to their according respective ases fault demonstrates that the district court’s Although the first trial. imposition Ford’s costs and proper court’s failure fees on permissible. As a discretion, matter, notice was an abuse of we find preliminary we do not believe that 41(d), it was reasonable to condition the Rule which allows district courts payment refiling faced with the of a previously dis- Ford’s costs. We therefore hold that the missed action to “make such order for the obligation pay Ford’s costs has not been payment of costs of the previously However, extinguished. are it may proper” dismissed as deem and to to blame pay “stay themselves but are unable to proceedings in the action until them, all or some of the order,” costs allocated to complied has with the decide, may the district court in its discre- is directly applicable here. Fed.R.Civ.P. tion, 41(d). whether and on what terms the case When the attempted, based go forward. 41(d), should Should the language Thomases on the persuade Rule fail their share of Ford’s the district court merely stay the refiled proceed will be allowed to it, with case instead of dismissing the district their suit notwithstanding the explicitly Thomases’ court stated that it had default. payment pursuant condition to Rule 41(d). 41(a)(2), not Rule See J.A. 427- We believe that this result is (Order Den. PL’s Mot. Stay & Order by holding our Dismissing Compl. Prejudice). Without given should have notice to the Duffys Moreover, before conditions on their dis- we do not believe that our 41(d). unable to fulfill. holding is inconsistent with Rule Admittedly, this First, result would entail some although, as correctly the dissent However, out, unfairness to Ford. faced points most courts that have consid- stands, the case as it now it seems inevit- question ered the have concluded that at- able that an party innocent torney will have to fees be awarded under Rule suffer, and we 41(d), believe that it would be the matter is far from settled in this worse for the day to lose their See, circuit or in most e.g., others. Ed- notice, without than for Clinton, 4.1(d) Ford to be ward X. Does Rule Autho- required to bear its costs in litigation. this Fees?, rize an Award Attorney’s 71 St. Furthermore, although our holding (1997) is lim- John’s L.Rev. 82 & nn. 5-6 to the unique ited circumstances of (noting that the federal are split courts case, district courts will be able to avoid the issue of whether attorney fees may be the danger of such unfair 41(d) outcomes in the awarded under Rule citing cases by future requiring sides). 41(d) approxi- defendants to on both Rule therefore does mate their costs granting a volun- not authority constitute clear for the dis- tary dismissal. Should the district addition, trict court’s actions. a num- neglect its responsibility, the defendant— ber of courts expressed reluctance to party with the easiest access to the exercise their discretion to award costs relevant 41(d) cost information —will have an in- under Rule when the result would be centive to encourage the court to fulfill it. deprive innocent plaintiffs of day Indeed, in the instant Ford could in court due to their inability protect have tried to itself requesting Dimock, defendant’s Gregory costs. See (2d clarify its Cir.1961); terms and 286 F.2d Zucker v. Katz, conditions when orally that court an- F.Supp. (S.D.N.Y.1989); nounced its grant intention to Texaco, Inc., Phoenix Canada Oil Co. v. dismissal motion. (D.Del.1978); F.R.D. see also
633 Acoustics, Inc., unfairness; from in protect 178 the defendant Loubier v. Modern (D.Conn.1998) addition, 17, (noting disputes Duffys’ Ford the conten- F.R.D. 22-23 that, is rulings of bad faith although showing no tion that the district court’s left on may be to in their prevail them unable case. 41(d), plain Therefore, urges under Rule the Ford the district action dismissing prior in tiffs motive did an ruling court’s not constitute abuse account); generally see taken into be of discretion. Miller, Wright Alan & Arthur R. 9 Charles circumstances, appropriate Under we 2375, § at Federal Practice and Procedure it would not believe that abuse ed.1995). 41(d) (2d Indeed, Rule is grant for the district court to a a forum to serve as deterrent to “intended on the condition that voluntary dismissal litigation,” of shopping and vexatious original from the action rulings carry all in there no evidence this case. which was to over the refiled action. District courts Arau, 1382, 1386 Esquivel F.Supp. v. have broad discretion to attach conditions (C.D.Cal.1996) First (quoting Simeone v. voluntary to dismissals under Rule Ass’n, 103, Bank Nat’l 971 F.2d 41(a)(2). Furthermore, id. several See Cir.1992)). event, a district court’s upheld of appeals courts 41(d), imposi of Rule like its application voluntary on dismissals similar to one pursuant tion terms and conditions See, Parker, 940 e.g., at issue here. F.2d 41(a)(2), subject to Rule is still review (upholding at 1025 the district court’s or court for abuse of discretion. appellate testimony excluded in the der al., Coquillette et Moore’s See 8 Daniel R. original not be in action could reintroduced (3d ed.1997). § Practice 41.70[7] Federal action); Templeton Nedlloyd the refiled that our We therefore believe decision (5th Cir.1990) Lines, 1273, F.2d understanding Rule harmony with the (noting approval the district court’s 41(d) expressed those cases. a decision to condition they would agreeing on the Rulings Imposing All from oppose existing discovery not the use of Original Action the Refiled Ac- on suit). Thus, necessary subsequent tion protection legitimate of Ford’s inter argue also that it see, ests, F.2d at e.g., LeCompte, 528 603- for the abuse of discretion district Miller, 05; supra, § & Wright on action the law of impose the refiled validly impose court could district original They action. the case from the evidentiary rulings from un- ruling claim that rendered them on their action. original action refiled able in the refiled prevail since troubled, however, by again ineptness Duffys’ original counsel We are court’s failure to notice to significant gaps proof.6 had left it intended to condition they point out that the dis- retaining the law of policy voluntary dismissal ruling trict court’s undermines the par- leave the case in the refiled action. record behind Rule which is to brought. reveals discussion of that condition on ties as if the suit had never been no 15, 1997, January In- when the re Passenger Corp. National R.R. See Machinists, orally and the district court quested ternational Ass’n (1st Cir.1990). Ford, The first dismissal. response, granted condition points out that Rule is also intended mention of law-of-the-case apply argument, ness of the district court's decision 6. At oral counsel rulings the dis- stated that the do contest action from the the refiled all grant summary judg- trict court's decision discovery regarding admissibil- trial; ment on several of their claims before therefore, ity of evidence. appropriate- we consider *11 appeared in the district court’s written prevents court’s condition pre them from dismissal, order granting vailing their suit and is not necessary addition, January 1997. the court protection of the defendant. We specify did not the matters governed to be believe that the district court is in the by the law of the case until an order better position to initially determine 11, 1998, entered on Duffys June after the whether there is a basis for reconsidering attempted to refile their suit.7 This lack evidentiary its rulings, whether Duffys of Duffys notice meant that did not are still capable of prevailing light of opportunity sufficient to contest rulings, those and whether retaining the the district court’s decision or to withdraw law of the case in the refiled action is their motion for if necessary protection for the of Ford’s in accept did not wish to that condition.8 terests. respect As we stated with to the cost We therefore find it necessary to vacate condition, we hold the district court the district court’s order applying the law given should have notice and original case to the refiled case and an opportunity to withdraw their motion direct the district court on remand to re- imposing the law-of-the-case condi consider its in light any objec- decision Marlow, 305; Lau, tion. See 19 F.3d at tions that Duffys may wish to make. 930; Corp., GAF 665 F.2d at note, however, We if the district rulings court’s from original action no We also note that the district court did longer apply action, the refiled Ford explain its reasons for deciding ap may be entitled to reimbursement for any ply rulings its from action to additional costs and fees that it will have reason, the refiled action. For this it is expend litigation the refiled as a particularly difficult to determine whether having result of relitigate rulings, those the district court appropriately exercised consistent with our discussion in Part II. its discretion in attaching this condition to B.l. See, the Duffys’ voluntary dismissal. e.g., Corp., DWG 962 F.2d at (citing Tara
gan Co., Lilly v. Eli & 838 F.2d III. CONCLUSION (D.C.Cir.1988)); LeCompte, 528 F.2d at reasons, For foregoing 605. Ford contends that no additional we VACATE dis covery is necessary 3,1998, for the court’s pre August dismiss- vail and that there al legal is no or order and factual its orders of June why reason 19, 1998, and June requiring inclined to differently rule on the eviden- Ford’s costs law tiary issues given an the cáse on the refiled and we opportunity to re-visit them. At the REMAND same the case for further proceed- time, the Duffys contend that the ings consistent with opinion. date, 7. On responding (Order in an order part 6/11/98). J.A. at 133-34 to the defendants' motion to determine the governed by items to be 17, 1998, the law of the August 8. On filed a mo- the district court stated: tion for reconsideration of the district court’s IT IS FURTHER ORDERED that the rul- assessing orders costs and fees and establish- ings made in the 94-2124 action shall be ing the law of the case and its order dismiss- law the case in the 98-2103 action. ing However, prejudice. the case without IT IS FURTHER ORDERED that because the already had filed a notice may add one to their witness list. appeal, the district court found that it was Plaintiffs must make such election jurisdiction without to consider those mo- days within 14 of the date of this order and tions. notify promptly. defendant Defendant expert's take deposition. the district court’s dismissal of O’MALLEY, concurring whether Judge, District *12 action, stringent the with its condi- original in dissenting part. in part tions, appealable. The was otherwise majority eloquently deals Although the “legal preju- what question of constitutes I can concepts, a of difficult with number 41(a)(2) Rule dis- dice” in the context of in concur in the conclusions the part fact-specific I complex, is a one. missals I in Specifically, concur majority reaches. it to in a engage do not believe is useful II.A, in result reached Sections the read discussion which could be to establish con- reasoning the and conclusion both parameters legal concept for this when II.B.2, majority of the tained Section unnecessary that to the discussion is dissent, however, I opinion; respectfully the appeal Court’s determination of majority opin- II.B.l of the from Section it.3 ion, have declined to address and would agree I that also in Section II.A certain matters discussed a law-of- abused its discretion a unnecessary to resolu- because are upon refiling rule the of an action the-case of this appeal. tion by Duffys. majority, agree Like I the the appropriate that an order can be such I. circumstances, and that some the district jurisdiction agree I this Court has that to reach the same would free Duffys’ issues raised in the to consider the presented with same evi- conclusions the dismissal of appeal. The district court’s Also dentiary questions in a new action. awas final Duffys’ the “refiled” action however, I majority, like agree the order, this Court with appealable vesting applied the court should not have rulings upon the jurisdiction to consider ruling an law-of-the-case across-the-board premised.1 which dismissal was in the precedent refiling, as a to condition Duffys’ refiled action was dismissed be- the absence of some notification to prior the would not or could not cause to do so. parties of its intention satisfy certain conditions the district court dis- Duffys’ sought the counsel When to imposed refiling. on In order assess mid-trial, district court had sev- missal the dismissal, this Court propriety the request, deny grant eral to the to choices: and, indeed, validity must assess the of can unconditionally, grant upon spec- it it or to predicate the conditions which were chose ified The district court conditions. true, regardless This is of that dismissal.2 routes; express- these the court last of imposed. when those conditions were request upon the ly granted Duffys’ light Duffys pay the conclusion the dis- defendant’s condition that Thus, refiled action when the dismiss trict dismissal of the costs. did court’s that, order, a the belief appealable rise an conclu- was with gave to cost, refiled action would majority agrees, I some financial which sion cure the provide opportunity them to question would have declined reach thus, out, pertinent nature the burden points to the majority while the dis- 1. As preju- imposition "without entry stated it was court’s created dice,” the of the dismissal was practical effect costs. Thus, Duffys’ forever claims. de- bar characterization, spite dismissal was issue, I would be pressed to address 3.If certainly judgment” "involuntary adverse "legal prejudice” did find that inclined to appeal lie. from which an does imposition the law-of-the-case arise from dismissal; I on condition case 2. The in this two majority for the same reasons the would do so must be considered tandem. While its court abused later concludes the district inability Duffys primarily focus on by insisting compliance with refiling, as a condition of Ford’s costs condition. that same additional law-of-the-case condition affects and, refiling value to the of that evidentiary or mistakes made to discovery II. court did nothing date. The district conclusions, As to the first of these or their counsel of the disabuse transcript review of the reveals that the that, subject payment
belief trial court present made clear to all during would be permitted “press the the proceedings, including Duffys, restart button” dismissal of their defen- post-hoc first action. The district court’s dant’s costs as a any refiling condition of *13 conditions, their dismissed action. impose decision to different af- Neither the dis- any trict nor party, ter nor counsel jury, dismissal and after release of the made payment reference to the of position having left the in the of counsel, by costs and certainly counsel privilege the defendant of re- made no commitment on the record that trying the case for which their counsel was willing would be to share the burden ill-prepared in the first instance. While Indeed, that, of appears those costs. it presented the district court could have “costs,” considering question “choice” to the counsel parties referring language to the dismissal, a Duffys likely choice the 41(d) Rule of the Federal Rules of Civil rejected, would have it did not do so. The Procedure, that, which provides expressly district court’s belated rul- law-of-the-case upon refiling of a dismissed “the ing rendered the dismissal useless may court make pay- such order for the strategy from a standpoint and constituted ment of costs of the action previously dis- an abuse of the court’s discretion under missed as it proper deem and may 41(a)(2).4 Rule stay proceedings in the action until the dissent, however, respectfully I plaintiff from the has complied with the order.” 41(d) added).5 Rule majority’s F.R.C.P. (emphasis conclusion Thus, the abused record reveals that its discretion when it notice of the imposed district court’s impose intention to fees and costs costs upon the upon Duffys, themselves as a condition counsel, rather than their as a to refiling provided was prior to the dis- And, refiling. condition of I dissent from entry. the conclusion that the district court had an obligation “to notice of is, moreover, There no apparent mecha- the approximate amount of costs for which by nism which the district court could have responsible upon refiling” imposed Ford’s costs upon counsel rather
prior to entering order granting First, noted, than the Duffys. the text Duffys’ request 41(d) for dismissal. (Majority of Rule imposition discusses the 630) opinion at upon plaintiffs, costs not counsel.6 Again, important it emphasize is concept refiling that it "costs” under "the rules” would be an impose not abuse of discretion and the examining counsel discusses conditions on dismissal question which are so oner- thirty dismiss). prior cost for over minutes undesirable, ous as to render pro- making to clear, moreover, the motion to It is also vided, however, that some notice of those only that the section of Rule dismissal, costs, conditions occurs before or at least concept which par- mentions the point upon at a when rejection reinstatement ticularly imposed upon refiling, costs is Rule 41(d). of the conditions remains feasible. That is not what occurred here. . 6.Indeed, in all instances in which a district party 5. While no specifically referred to Rule refiling upon court conditioned pay- of a case 41(d) record, appears on the from the con- ment I could find one where the text parties (as of the discussion that plaintiffs himself) and the opposed counsel to the referring court were to the text of Rule 41 payment. was ordered to make See discussing Co., when the motion to dismiss and Brewing Whitehead v. Miller 126 F.R.D. imposition (See (M.D.Ga.1989). upon refiling. Whitehead, of costs And even in 325-330, J.A. at where the court refers to the the district court characterized its decision to I would let Ford or the court.8 uncondi- such as Next, were not Duffys resort to those mechanisms imposed as a condition they were tionally; (or reviving redirecting their claims help While refiling of a new action. to the to find decline altogether) them involved necessarily would be be; its discretion in abused refiling, might counsel any such Federal Rules of doing precisely be- what the replaced withdraw or be counsel could do. Procedure allow it to obligation Civil triggering the fore the event Indeed, ever occurred. pay costs III. Thom- happened what here —the
precisely longer no replaced and were ases were majori- disagree strongly I also with the refiling oc- of record when the counsel that the district ty’s conclusion dis- for the It would difficult curred. (1) approxi- obligated to: determine Duffys’ right to condition the trict court Duffys might amount of mate “costs” of an act performance upon refile (2) action; refiling face of their *14 litiga- in the longer no involved someone that Duffys fig- notice of provide the with tion. Duffys’ motion to accepting the ure obligation point a Not is such Finally, majority as the makes dismiss. authority granted neither sanc- inconsistent the noting, Thomases, findings made under the Federal Rules of the nor district courts tioned Procedure, a burden evidencing imposes a clear it on against the Thomases Civil be unworkable in district court trial courts which would to do so.7 While a intention sanc- impose the surely practice. has behav- variety counsel for a upon
tions 41(a) Rule majority concludes that The iors, obligation under no to do so it is is, requirement a notice contains —that opposing of a motion the the absence from not condition a may a district court that such or a record party seeking sanctions prejudice upon dismissal without for predicate a clear which reflects factual disclosed to the requirement a that is not doing so. seeking dismissal before party that majority then concludes failures alone occurs. truly If it was counsel’s aborted, this notice re- court violated the first trial to be which caused (1) by calculate the failing to: quirement it unfair to the burden impose does seem costs dollar the fully Duffys. the amount upon approximate costs 41(d) pay upon Duffys required what autho- precisely That is Rule (2) however, of that do, Duffys inform dol- refiling; district court to rizes the (3) figure; lar precisely this district court indicated what of their the merits were dis- chance to reassess it do the first action would moreover, I noted are, dismiss. As motion to pending mid-trial. There missed earlier, impropriety discussing be- when shifting for the of costs mechanisms imposition of a mal- court’s belated (e.g., and errant counsel district tween client on), claims, actions, on the law-of-the-case condition practice contract so 41(a) dismissal, agree generally Rule I that placing the burden of which avoid a notice implies obligation i.e., a disputes upon parties, third internecine — suggest their actions were as a find or impose payment of on counsel costs judicial pro- "willful [of] abuse sanction sanctionable. (citation omitted). The at Id. cesses.” by court enforced this "sanction” Whitehead Indeed, argument oral current counsel at 8. allowing refiled counsel to withdraw from the have indicated that payment only after of the costs. case malpractice against claim a asserted Thomases. perfor- district court characterized "inept,” did but mance of Thomases as not “condition” a dis- what generally strategy could decide best requirement that is neither them at that I upon point suited time. cannot 41(a) by contemplated parties disclosed nor agree Rule mandates such an prior to the effective date of that dismissal. accommodating approach who But, agree that this notice re- I cannot actions which ma- seek dismiss quirement unwieldy proce- commands the point tured to the of trial. majority imposes
dure here. 41(d), moreover, The text of Rule lends the transcript A review of reveals that further support to the conclusion that the put on notice that their district court was not provide pay- dismissal would be conditioned on the 41(d) Duffys. cost estimate to the Rule put and were ment costs notice grants authority a district court the would include these “costs” whatever costs fees, impose (including attorney costs ac- might be authorized under “the rules.” law)9 cording to case on a upon Thus, there no doubt refiling of an action dis- previously and their counsel were aware both missed in whether or not the costs would that was the earlier dismissal was conditioned Duffys who would bear the risk that those rule, threat of such costs. This not cited might they hoped. entail more than all, majority indepen- contains an surely This notice is sufficient to meet the grant authority dent to impose costs. *15 41(a); indeed, requirements of Rule there 41(d) authority granted Rule is 41(a) nothing in the text of Rule or dependent upon plaintiffs; notice to considering justifies the cases it that im- text of the rule itself constitutes such no- any greater posing obligation on the dis- Thus, tice. I would find that the district trict court. authority court retained the under Rule 41(d) to impose Duffys, however, majority, believes that the even the absence of notice of its inten- district court abused its tion to do so. because, case when faced with a motion to mid-trial, dismiss it failed to suspend the
proceedings, require Ford to calculate its IV. fees, attorney costs and provide that infor- IWhile am not without sympathy some counsel, mation to the and their position which the find and the contemplate time to themselves, respect majority’s ef- their decision to prosecution abandon issues, fort to deal with these difficult I their case. This exercise would have re- cannot agree with all of the quired Ford’s counsel to conclusions the divert its atten- majority reaches. I would tion from trial and calculate their reverse the time and fees, dismissal of the accompanying and would refiled va- have re- quired the district court to cate the district court’s decision impose make an initial assessment of the upon refiling, reasonableness of those law-of-the-case rule charges legal and of the definition of costs remand with directions to provide the Rules, under the Federal jury Duffys all while the a renewed opportunity satisfy being wait, asked to sit and and all payment so the condition of of Ford’s costs Arau, Esquivel F.Supp. See that have addressed the' issue have held (N.D.Cal.1996) awarded”); (undertaking 1388-92 may a thor fees hut see Anders v. FPA ough analysis holding (D.N.J.1995) attorney Corp., fees 164 F.R.D. 41(d)); may always be awarded (holding attorney under rule fees not be award Clinton, Jr., 41(d) 41(d) Edward X. Does Rule Au ed Rule underlying under unless the Fees?, Attorney’s an Award already shifting 11 St. thorize allows for (1997) fees). ("[m]ost John's L.Rev. courts by the court.10 trial HILL, Plaintiff-Appellant, Louise FINANCE,
AMERICAN GENERAL
INCORPORATED, corporation,
Defendant-Appellee.
No. 99-2682. Appeals,
United States Court
Seventh Circuit.
Argued Jan. 4,May
Decided En Rehearing
Rehearing and Banc 27, 2000. July
Denied *16 materially the absence of Again, op- dition different in provide I would this renewed portunity satisfy the cost condition because condition. law-of-the-case concomitant of, imposed by, value or that con- burden