904 F.2d 83 (1st Cir. 1990), 89-2196, Sandstrom v. Chemlawn Corp.

Docket Nº:89-2196.
Citation:904 F.2d 83
Party Name:Richard L. SANDSTROM, etc., Plaintiff, Appellant, v. CHEMLAWN CORPORATION, et al., Defendants, Appellees.
Case Date:May 17, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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904 F.2d 83 (1st Cir. 1990)

Richard L. SANDSTROM, etc., Plaintiff, Appellant,

v.

CHEMLAWN CORPORATION, et al., Defendants, Appellees.

No. 89-2196.

United States Court of Appeals, First Circuit

May 17, 1990

Heard April 2, 1990.

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Jeffrey S. Goldstein, with whom Bertram M. Goldstein, Goldstein, Hood & Associates, Baltimore, Md., Ronald R. Coles, and Coles & Monque, Kennebunk, Me., were on brief, for plaintiff, appellant.

Christopher C. Taintor, with whom Robert F. Hanson, Norman, Hanson & DeTroy, Portland, Me., Michael K. Yarbrough, and Frost & Jacobs, Columbus, Ohio, were on brief, for defendants, appellees.

Before TORRUELLA and SELYA, Circuit Judges, and COFFIN, Senior Circuit Judge.

SELYA, Circuit Judge.

Having learned to his dismay that the grass is not always greener in some more convenient venue, plaintiff-appellant Richard L. Sandstrom asks that we rescue him from an inhospitable legal landscape. After carefully reviewing the record and the arguments advanced, we find the forestation to have been planted largely by Sandstrom's own hand. We therefore decline to disturb the district court's order of dismissal.

I. ROOTS OF THE DISPUTE

The seeds of this controversy were sown some time ago in Connecticut (where the Sandstrom family was living). Plaintiff's son and ward, Richard C. Sandstrom, a legal incompetent, allegedly sustained injuries there through exposure to pesticides used by the defendant. 1 The problem with ChemLawn pesticides was apparently widespread; in 1986, a class action (the Blake suit) was brought against ChemLawn in the United States District Court for the Eastern District of Pennsylvania. Sandstrom would have been part of the Blake class. But the district court refused class certification.

Undaunted, Sandstrom continued to plough the same field. Along with 23 other plaintiffs, he filed a civil action (the Bugman suit) against the same defendant in the same court on February 10, 1988. Jurisdiction was premised on diversity of citizenship and the existence of the requisite amounts in controversy. See 28 U.S.C. Sec. 1332(a) (1982). ChemLawn moved to sever the 23 individual claims. With respect to those plaintiffs who did not reside in the district, ChemLawn also sought to change venue pursuant to 28 U.S.C. Sec. 1404(a). 2 In

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haec verba, the motion specifically requested that such claims be transferred "to the Federal Judicial District[s] in which the respective plaintiffs reside and/or their causes of action arose." In an accompanying memorandum, ChemLawn stated that jurisdiction over it was "available in each of the judicial districts represented by the named plaintiffs."

By the time this motion was served, Sandstrom--unlike most of his fellow Bugman plaintiffs--no longer dwelt in the district where the exposure had occurred, having moved from Connecticut to Maine. Sandstrom did not oppose defendant's motion to transfer and, apparently preferring Maine to Connecticut or Pennsylvania as a locus for further prosecution of his claim, acquiesced in defendant's suggestion that the case be sent to Maine. On June 28, 1988, the district court granted the motion, severed Sandstrom's claim, and transferred the remnant to the United States District Court for the District of Maine.

A year went by. The parties cultivated and completed pretrial discovery. The court scheduled trial to begin on July 17, 1989. Plaintiff sought a continuance, but the judge would not oblige. Plaintiff then took a different tack: to rid himself of the unwanted trial assignment, he stipulated to a voluntary dismissal, without prejudice. 3 The case was dismissed on June 14, 1989.

Far from abandoning hope of harvesting the fruits of his litigation, Sandstrom planned merely to postpone the yield. Within a matter of weeks, he brought the instant diversity action in the Maine federal court. The "new" case ("Sandstrom II ") was materially indistinguishable from the "old" case ("Sandstrom I ") which had been carved out of Bugman. Following service of process, ChemLawn moved to dismiss Sandstrom II for want of in personam jurisdiction. The district court granted the motion. Sandstrom v. ChemLawn, 727 F.Supp. 676 (D.Me.1989).

II. EFFECT OF PRIOR PROCEEDINGS

On appeal, plaintiff's primary contention is that in the course of Sandstrom I ChemLawn "represented" that Maine enjoyed jurisdiction over ChemLawn's corporate person and that ChemLawn should be bound by this representation in Sandstrom II, thereby forestalling its assertion of a jurisdictional defense. Having scrutinized the record, we find neither plaintiff's premise nor his conclusion to be tenable.

A.

The record is clear that ChemLawn never explicitly represented that it transacted business in Maine or was subject to service of process there. Similarly, there has been no persuasive showing that ChemLawn impliedly made such a representation. Although appellee's 1988 statement that jurisdiction was "available" in the district "represented" by the plaintiff (quoted supra p. 85) seems ambiguous on its face, the ambiguity vanishes once the statement has been placed in context. Court filings, like other documents, must be read as a whole. Reading ChemLawn's memorandum to the Pennsylvania district court in its entirety, ChemLawn asserted only that, as to each of the plaintiffs (Sandstrom included), personal jurisdiction existed in either the district where the exposure occurred or a district where the plaintiff resided. Since the parties agree that personal jurisdiction was available in Connecticut at all times material hereto, there was no misrepresentation. Infelicity of phrase notwithstanding, we are unable to accept as plausible any more sinister interpretation of the disputed language.

This is so despite an ingenious smoke-and-mirrors argument which plaintiff belatedly constructs around Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254

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(1960). Certainly, Hoffman suggests that, from the perspective of venue, Sandstrom I should not have been dispatched to a district where the defendant was unamenable to process. See id. at 343-44, 80 S.Ct. at 1089-90. Inasmuch as Hoffman was never mentioned at the time of transfer, the most logical inference to be drawn, however, is that all of the protagonists--plaintiff, defendant, and the transferor court--overlooked it. Furthermore, neither the intricacies of Hoffman nor its potential impact upon this litigation require exploration: because the argument was not made to the district court or in appellant's opening brief, surfacing only in his reply brief, it has been waived. See Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.1987) (arguments not made below cannot ordinarily be raised for the first time on appeal); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979) (same); Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.1983) (appellant cannot instate omitted point "merely by referring to it in a reply brief or at oral argument"); United States v. Weber, 668 F.2d 552, 561 (1st Cir.1981) (same), cert. denied, 457 U.S. 1105, 102 S.Ct. 2904, 73 L.Ed.2d 1313 (1982).

B.

Even if we assume, contrary to the record, that there was some intimation in the course of Sandstrom I that ChemLawn would not contest personal jurisdiction in Maine, any such commitment would be irrelevant to the situation in Sandstrom II. Absent explicit conditions to the contrary--and there were none here--a voluntary dismissal under Fed.R.Civ.P. 41(a) wipes the slate clean, making any future lawsuit based on the same claim an entirely new lawsuit unrelated to the earlier (dismissed) action. See Hill v. W. Bruns & Co., 498 F.2d 565, 567 n. 2 (2d Cir.1974); Bomer v. Ribicoff, 304 F.2d 427, 428 (6th Cir.1962); Bryan v. Smith, 174 F.2d 212, 214 (7th Cir.1949); see also 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil Sec. 2367 at 186 (1971). Agreements do not automatically survive from one suit to the next.

In this regard, we find persuasive the reasoning in In re Piper Aircraft Distribution System Antitrust Litigation, 551 F.2d 213 (8th Cir.1977). There, plaintiff Van-S Aviation, a former dealer, had initiated civil antitrust litigation against Piper Aircraft Corporation and various Piper distributors in seven different judicial districts. Van-S sought to represent all victimized Piper dealers. Id. at 215-16. In May 1974, a federal district judge in the Southern District of Florida resolved the class action issue against the plaintiff. The following day, plaintiff filed a notice of voluntary dismissal, Fed.R.Civ.P. 41(a)(1)(i), in the Florida case. Later, the six remaining suits were consolidated for pretrial proceedings in the Western District of Missouri. The Missouri district court refused to consider granting class action status, ruling that the Florida decision conclusively resolved the class certification issue. Piper, 551 F.2d at 216. The Eighth Circuit reversed, stating: "The effect of a voluntary dismissal without prejudice is to render the [dismissed] proceedings a nullity and leave the parties as if the action had never been brought." Id. at 219. The voluntary dismissal of plaintiff's Florida action, therefore, "carrie[d] down with it previous proceedings and orders in the action, and all pleadings, both of plaintiff and defendant, and all issues, with respect of plaintiff's claim." Id. (quoting 27 C.J.S., Dismissal and Nonsuit, Sec. 39 (1959)). Our own precedent corroborates the same rule. See Cambrera v. Municipality of Bayamon, 622 F.2d 4, 6 (1st Cir.1980).

Sandstrom I ended in a prototypical, garden variety voluntary dismissal. Absent explicit conditions to the contrary, the prior proceedings became a nullity. We agree with the Piper and Cambrera panels that, once an action has been voluntarily discontinued, all markings are erased and the page is once again pristine. 4 It follows

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inexorably that, in...

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