168 F.3d 405 (11th Cir. 1999), 97-6680, University of South Alabama v. American Tobacco Co.

Docket Nº:97-6680.
Citation:168 F.3d 405
Party Name:UNIVERSITY OF SOUTH ALABAMA, Plaintiff-Appellant, v. THE AMERICAN TOBACCO COMPANY, et al., Defendants-Appellees.
Case Date:February 22, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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168 F.3d 405 (11th Cir. 1999)



THE AMERICAN TOBACCO COMPANY, et al., Defendants-Appellees.

No. 97-6680.

United States Court of Appeals, Eleventh Circuit

February 22, 1999

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Christopher E. Peters, Mobile, AL, Russell Jackson Drake, Frederick T. Kuykendall, Joe R. Whatley, Jr., Charlene P. Cullen, Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, AL, Don Siegelman, Cherry, Givens, Peters & Lockett, Robert Weinberg, Atty. Gen., Montgomery, AL, for University of South Alabama.

Scott E. Delacroix, James G. Perdiago, Adams & Reece, New Orleans, LA, for Philip Morris.

William H. Brooks, Samuel H. Franklin, Lightfoot, Franklin & White, LLC, Birmingham, AL, Edward S. Sledge, III, Archibald T. Reeves, IV, McDowell, Knight, Roedder & Sledge, LLC, Mobile, AL, for Reynolds Tobacco Co.

H. Thomas Wells, Jr., Kevin W. Patton, Maynard, Cooper & Gale, Vernon Wells, Walston, Wells, Anderson, Birmingham, AL, for American Brands, etc.

Robert Bailey Reneau, Reneau & Thornton, Wetumpka, AL, for Council for Tobacco Research.

Robert A. Huffaker, Rushton, Stakely, et al., Montgomery, AL, William J. Baxley, Baxley, Dillard, Dauphin & McKnight, Birmingham, AL, for Tobacco Inst.

William C. Knight, Jr., Burr & Forman, L.L.P., Birmingham, AL, for Lorillard/Loews.

Robin G. Laurie, Balch & Bingham, Montgomery, AL, John C., Morrow, Burr & Forman, LLP, Vernon L. Wells, II, Helen Currie Foster, Walston, Wells, Anderson & Bains, LLP, Birmingham, AL, for Hill & Knowlton.

Robert Winberg, Asst. Atty. Gen., Montgomery, AL, for Movant-Appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before HATCHETT, Chief Judge, MARCUS, Circuit Judge, and KRAVITCH, Senior Circuit Judge.

MARCUS, Circuit Judge:

The central issue raised on appeal is a question of sequence or ordering: whether the district court should have first addressed Appellant University of South Alabama's ("University") Motion to Remand this diversity case to state court because it lacked subject matter jurisdiction before it turned its attention to the Attorney General of Alabama's

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Notice of Dismissal under Fed.R.Civ.P. 41(a)(1). Because the district court plainly lacked subject matter jurisdiction to entertain this case, we hold that it improvidently reached a complex question of substantive state law--whether the Attorney General had the power to manage and control complex litigation commenced by the University. Accordingly, we vacate its order of dismissal and remand to the district court with instructions that this cause be remanded to the state court from whence it came.


Appellant University commenced this action on May 19, 1997 in the Circuit Court of Mobile County, Alabama, against Appellees The American Tobacco Company, American Brands, Inc. (now known as Fortune Brands, Inc.), R.J. Reynolds Tobacco Company, RJR Nabisco, Inc., Batus Tobacco Services, Inc., BAT Industries, P.L.C., British American Tobacco Company, Ltd., Brown & Williamson Tobacco Corporation, Philip Morris Inc. (Philip Morris U.S.A.), Loews Corporation, Lorillard Corporation, The Council for Tobacco Research-U.S.A., Inc. (successor to Tobacco Institute Research Committee), The Tobacco Institute, Inc., Hill & Knowlton, Inc., United States Tobacco Company, and fictitious defendants "A" through "Z" to recover damages for and restitution of the monies expended for unreimbursed medical care arising from tobacco-related illnesses. Specifically, the University brought claims for restitution, unjust enrichment, indemnity, public nuisance, fraud and misrepresentation, conspiracy, and antitrust violations.

On June 17, 1997, Appellees removed the action to federal district court on the basis of diversity jurisdiction. See 28 U.S.C. §§ 1332, 1441 (1994). The following day, June 18, 1997, Appellee R.J. Reynolds filed its answer. Almost immediately thereafter, on June 23, 1997, before any other Appellee had answered, the Attorney General of Alabama filed a Notice of Dismissal pursuant to Fed.R.Civ.P. 41(a)(1). The Attorney General argued that he was the proper plaintiff in this action because the University is an agency and instrumentality of the state subject to the Attorney General's authority to direct and control litigation under Ala.Code § 36-15-21 (1991 & Supp.1997). The University then filed a Motion to Remand on June 26, 1997, alleging lack of subject matter jurisdiction. On July 7, 1997, Appellee R.J. Reynolds filed a "Joinder in Defendants' Memorandum of Law" requesting dismissal by order of the court pursuant to Fed.R.Civ.P. 41(a)(2).

On August 12, 1997, after conducting a hearing on the matter, the district court issued a lengthy final order finding that since the Attorney General had authority under Alabama law to file a Notice of Dismissal in this action, the entire action was dismissed without prejudice pursuant to Fed.R.Civ.P. 41(a)(1). Specifically, the district court found that the Notice of Dismissal filed by the Attorney General immediately dismissed the case as to all Appellees other than R.J. Reynolds Tobacco Company, which previously had filed an answer. See Fed.R.Civ.P. 41(a)(1)(i). The district court concluded, however, that the dismissal also was effective as to R.J. Reynolds on July 7, 1997, when the company filed a signed pleading concurring with the Attorney General's Notice of Dismissal. See Fed.R.Civ.P. 41(a)(1)(ii). At no point did the court reach the question of its subject matter jurisdiction. This appeal followed. 1


We review issues of federal subject matter jurisdiction de novo. See Stovall v. City of Cocoa, 117 F.3d 1238, 1240 (11th Cir.1997). Similarly, a voluntary dismissal under Fed.R.Civ.P. 41(a)(1) is a question of law subject to de novo review. See Matthews v. Gaither, 902 F.2d 877, 879 (11th Cir.1990) (per curiam).

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Under Rule 41(a)(1), "an action may be dismissed by the plaintiff without order of the court (i) by filing a notice of dismissal at any time before service of the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action." Fed.R.Civ.P. 41(a)(1). Ordinarily, a Rule 41(a)(1) voluntary dismissal is effective immediately and requires no action by the district court. See Matthews, 902 F.2d at 880; see also Williams v. Clarke, 82 F.3d 270, 273 (8th Cir.1996) (holding that voluntary dismissal " 'render[s] the proceedings a nullity and leave[s] the parties as if the action had never been brought' ") (internal quotation marks omitted). Voluntary dismissal, moreover, normally may precede any analysis of subject matter jurisdiction because it is self-executing and moots all pending motions, obviating the need for the district court to exercise its jurisdiction. See Nix v. Fulton Lodge No. 2 of the Int'l Ass'n of Machinists, 452 F.2d 794, 797-98 (5th Cir.1971) (holding that district court could properly consider Rule 41(a)(1) notice of dismissal as to one defendant before addressing motion to dismiss for lack of subject matter jurisdiction). 2

In the instant case, however, the Attorney General's Notice of Dismissal demanded more than a perfunctory voluntary dismissal analysis. Rather, the notice necessarily required the district court to determine a complex substantive issue of Alabama law. Because the Alabama Attorney General was neither a named plaintiff, nor counsel of record, it was by no means clear that the proper plaintiff had filed a Notice of Dismissal in this proceeding--particularly where the University vigorously contested the Attorney General's power to speak for the plaintiff. Therefore, in order to determine whether the Attorney General's notice satisfied the requirements of Rule 41(a)(1), the district court first had to determine that the University was an agency of the state, that the University was subject to the authority of the Attorney General to control all litigation in the state, and, hence, that the Attorney General had the authority to file a Notice of Dismissal. Plainly, these were substantive rulings concerning Alabama law, albeit unusual in a Rule 41(a)(1) context, that the district court had no authority to make without first determining whether it had subject matter jurisdiction to hear the case. Accordingly, because of the unusual circumstances of the instant case, we conclude that the district court erred in failing to consider Appellant's Motion to Remand for lack of subject matter jurisdiction before it addressed the Attorney General's Notice of Dismissal.

It is by now axiomatic that the inferior federal courts are courts of limited jurisdiction. They are "empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution," and which have been entrusted to them by a jurisdictional grant authorized by Congress. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.1994). Congress, however, may " 'give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution.' " Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 215 (5th Cir.1998) (en banc) (quoting Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed. 226 (1922)), cert. granted, --- U.S. ----, 119 S.Ct. 589, 142 L.Ed.2d 532 (1998) (No. 98-470). And because the Constitution...

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