Commercial Litigation and Arbitration

Rule 41(a)(1)(A)(ii) Stipulation of Dismissal Is Effective without Court Order Only If Stipulation Is Executed by All Parties Who Have Appeared in Action — Not Just Parties Remaining at Time Stip Signed

From Anderson-Tully Co. v. Federal Ins. Co., 2009 U.S. App. LEXIS 21141 (6th Cir. Sept. 23, 2009):

Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), a "plaintiff may dismiss an action without a court order by filing . . . a stipulation of dismissal signed by all parties who have appeared." And, on January 14, 2008, ATCO and Federal — the only two parties remaining in the action [Aon having earlier won summary judgment] — filed a "Joint Stipulation of Dismissal," which even began with the phrase: "Pursuant to Rule 41(a)(1)(ii) [sic] of the Federal Rules of Civil Procedure, . . . ." The district court entered its next order on March 25, 2008 (when it denied ATCO's outstanding motions [against Aon]), and ATCO appealed from that order on April 18, 2008 — 24 days after March 25, but 95 days after January 14.

Aon contends that, even without a court order, the case was final on January 14, 2008, and therefore, ATCO's notice of appeal — filed 95 days later — was untimely. Aon relies on Rule 41(a)(1)(A)(ii) for the proposition that the case could be concluded (dismissed) without a court order, and points to the "Joint Stipulation of Dismissal" as proof that it was. ATCO responds that the dismissal was not effective without a court order because it did not include the signatures of "all parties who have appeared," which would include Aon.

[Footnote 5] ATCO also points out that, based on the language of the stipulation itself, this was far from a clear expression of a Rule 41(a)(1)(A)(ii) dismissal-without-a-court order, inasmuch as this stipulation expressly "request[ed] that the Court dismiss [the] claims" and included an appended draft order for the court's use or assistance in doing so.

Confronted with the fact that it had appeared but had not signed the stipulation, Aon contends that, because the word "parties," when used in the Federal Rules, typically means only those entities remaining in the action, it was not a "party" — having already been removed from the action by the summary judgment — and, consequently, was not required to sign the stipulation in order to satisfy the Rule and complete the dismissal.

-Neither ATCO nor Aon provides controlling case law and, in fact, both sides suggest that this is a matter of first impression. So, we begin at the beginning and "the starting point in interpreting statutes and rules is always the plain words themselves," see Marek v. Chesny, 473 U.S. 1, 16, 105 S. Ct. 3012, 87 L. Ed. 2d 1 (1985) — here: "all parties who have appeared." And we are mindful that the drafters could just as easily have written "all existing parties who have appeared," or "all remaining parties who have appeared." In fact, given Aon's argument, we note that the drafters could have just written "parties," without any qualifier at all. They did not. The drafters wrote "all parties who have appeared."

Aon argues that "all . . . who have appeared" does not enlarge the covered group to include those who were parties but have since been dismissed, excused, or removed from the action; rather, Aon argues, it limits the covered group to those who are currently parties and have appeared. As support for this argument, Aon explains that the word "parties" is a term of art, as used in the Federal Rules, that generally means only those entities that are currently parties to the action. But what is generally true is not always true. In Rule 19(b), for example, the drafters used the phrase "existing parties" to describe those parties currently in the action, and in Rule 25(a)(2), the drafters used the phrase "remaining parties." If "parties" were a term of art that always meant "parties currently in the action," these qualifiers — "existing" and "remaining" — would not be necessary.

Moreover, it bears at least brief mention that the termination of the litigation stage is also the initiation of the appeal stage — two sides of the same coin, as it were. Indeed, in the present case, it is only the latter that concerns Aon; having been removed from the litigation via summary judgment, Aon had no interest in the ensuing litigation between ATCO and Federal. But, as the present motion makes clear, the other side of that coin — the initiation of the appeal stage — was (and is) of significant concern to Aon, inasmuch as Aon was likely to be a party to that appeal. And it is that point that bears mention — that, once the litigation has terminated and the appeal stage has begun, the word "parties" unquestionably means those entities that were parties to the litigation, no matter when (or how) they were removed from the litigation. So, for purposes of Rule 41(a)(1)(A)(ii), which is clearly one means of crossing the threshold between the two stages, the appeal-stage side of the threshold clearly favors our construing the phrase "all parties who have appeared" (and the word "parties" in particular) as including both current and former parties.

Lacking compelling contrary authority, we find the more prudent course is to decline the invitation to qualify the meaning of the word "parties" when the drafters could have done so themselves — such as in Rule 19(b) and 25(a)(2) — but did not. Instead, we find the plain meaning of "all parties who have appeared" to include all entities who have appeared in the action as parties. We note that this liberal construction of the Rule inflicts no significant prejudice on a plaintiff seeking to voluntarily dismiss an action. If, for whatever reason, the plaintiff cannot obtain the signatures of all those who have appeared in the action as parties, that plaintiff needs only to move for and obtain a court order formally dismissing the case, as is provided for in Rule 41(a)(2).

In this case, the attempted Rule 41(a)(1)(A)(ii) dismissal was ineffective due to ATCO's failure to procure Aon's signature, so the present case was not final until the district court issued its order on March 25, 2008. As a result, the April 18, 2008 notice of appeal was timely.

Share this article:


Recent Posts