Leon v. Marcos

• Decision Date: 31 October 2011
• Docket Number: No. 10–1578.,10–1578.
• Parties: Ferdinand DE LEON, Plaintiff–Appellant,v.Imelda R. MARCOS; Ferdinand R. Marcos; Denman Investment Corporation, Inc., Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

659 F.3d 1276

80 Fed.R.Serv.3d 1283

Ferdinand DE LEON, Plaintiff–Appellant,

v.Imelda R. MARCOS; Ferdinand R. Marcos; Denman Investment Corporation, Inc., Defendants–Appellees.

No. 10–1578.

United States Court of Appeals, Tenth Circuit.

Oct. 31, 2011.

Submitted on the briefs: ^*Robert A. Swift, Kohn, Swift & Graf, P.C., Philadelphia, PA (Richard G. (Chip) Sander, Sander Ingebretsen & Wake, P.C., Denver, CO, with him on the brief), for Plaintiff–Appellant.Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.TYMKOVICH, Circuit Judge.

Ferdinand De Leon appeals from the district court's entry of judgment in favor of defendant Denman Investment Corporation, Inc. The district court granted Denman's motion to dismiss on the merits after the parties had already executed a settlement agreement and filed a stipulation of dismissal. As explained below, we have jurisdiction under 28 U.S.C. § 1291, and conclude that the stipulation of dismissal was a self-executing dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). We therefore vacate the district court's judgment and remand for the entry of an order stating that, by stipulation of the parties, the action is dismissed with prejudice.

I. Procedural Background

De Leon represents a class of over 9500 people who brought human rights claims against former Philippines President Ferdinand Marcos. In 1995, the class obtained a judgment of nearly $2 billion in the United States District Court for the District of Hawaii. In 1997, the class registered the Hawaii judgment in the United States District Court for the Northern District of Illinois pursuant to the enforcement provisions of 28 U.S.C. § 1963. The registered judgment became dormant seven years later, but was revived in 2008 and will remain effective until 2017 under Illinois law. De Leon registered the revived Illinois federal judgment in the United States District Court for the District of Colorado in 2008.

Meanwhile, in 2005, the class filed an action in the United States District Court for the Northern District of Texas, seeking to enforce the Hawaii judgment against real property in Texas allegedly owned by the Marcos estate (the Del Prado case). After the Texas district court determined that the Hawaii judgment had expired under Hawaii state law before the Del Prado plaintiffs filed their complaint, the class obtained an extension of the judgment from the Hawaii district court in 2006. However, the extension was reversed on appeal. See Hilao v. Estate of Marcos, 536 F.3d 980, 982 (9th Cir.2008). The Del Prado plaintiffs then registered the revived Illinois federal judgment in the Northern District of Texas and amended the complaint to rely on that judgment. The Texas district court ruled that the Illinois judgment could not be registered in other states, but the Fifth Circuit reversed in April 2010, concluding that the Illinois judgment could be registered in other jurisdictions. See Del Prado v. B.N. Dev. Co., 602 F.3d 660, 662 (5th Cir.2010).

While the Del Prado case was proceeding, De Leon filed this putative class action in September 2009, seeking to enforce the Illinois judgment he had registered in the District of Colorado ¹ against real property in Colorado that the class asserted was owned nominally by Denman but beneficially by the Marcos estate. Denman filed a motion to dismiss in October 2009, contending that, among other things, the Illinois judgment was not enforceable in Colorado.² On June 25, 2010, the Colorado district court held argument on Denman's motion to dismiss, denied a motion to certify the class, and dismissed the sole claim against the Marcoses.

In July 2010, while Denman's motion to dismiss was still under consideration, De Leon filed an Advice of Settlement indicating that the parties had reached a settlement in principle of both this action and Del Prado. On August 13, 2010, the parties executed a settlement agreement (Agreement) and filed it four days later in Del Prado. Among other things, the Agreement provided:

Within ten (10) business days after the Execution Date, Plaintiff shall submit to the United States District Court for the District of Colorado a motion requesting entry of an order, in the forms attached hereto as Exhibit E, providing that the Colorado Actions are dismissed without prejudice upon entry of the Order and that the dismissals shall become with prejudice as to Denman only on the Effective Date.³

Aplt.App. at 30, ¶ 27.⁴ The Agreement also provided that if it was rescinded for any reason, De Leon reserved the right to withdraw the dismissal of the Colorado actions.

On August 19, 2010, De Leon filed the stipulations that were attached to the Agreement in the Colorado district court. The stipulation as to Denman contained three “whereas” clauses, two of which are relevant. The first provides: “WHEREAS, the Agreement requires Plaintiff, within 10 business days of August 13, 2010, to move this Court for an Order dismissing without prejudice the above-captioned action as to Defendant Denman and providing that the dismissal shall become with prejudice on the ‘Effective Date (as defined in the Agreement).’ ” ECF No. 88 at 1.⁵ The other relevant “whereas” clause states: “WHEREAS, the plaintiff and Denman agree that, in the event the Settlement is rescinded, the Plaintiff may withdraw the dismissal and reinstate the ... action.” Id. After the “whereas” clauses, the stipulation provided:

NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between counsel in the above-captioned action that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2), each party to bear its own costs. Plaintiff's counsel shall promptly notify the Court of the Effective Date after it occurs.Id. at 2. The stipulation was signed by counsel for De Leon and Denman. Below these signatures, the stipulation reads:

SO ORDERED:

BY THE COURT:

__________

Marcia S. Krieger

United States District Judge

Id.

On September 23, 2010, the district court entered three orders. In the first order, the court granted Denman's motion to dismiss on the merits. In the second order, the court withdrew its merits decision in a text-only docket entry. The court stated the following with regard to the stipulation:

[I]n issuing the Order [granting Denman's motion to dismiss], the Court overlooked the parties' prior Stipulation of Dismissal.... However, having reviewed that stipulation, the Court notes that it is conditional in nature, anticipating that the parties would file a motion to dismiss within 10 days of August 13, 2010. No such motion was filed, and thus, the Court assumes the parties have rescinded the settlement as set forth in the Stipulation.

ECF No. 90. In its third order, the district court issued a corrected merits decision, holding that a judgment created by registration under 28 U.S.C. § 1963 is enforceable only in the jurisdiction where it is registered and cannot be later re-registered in another jurisdiction. De Leon v. Marcos, 742 F.Supp.2d 1168, 1176–79 (D.Colo.2010). Thus, the judgment created by registration in the Northern District of Illinois could not be re-registered in Colorado to support the action, the court held, and therefore De Leon lacked standing. Id. at 1179.

On September 27, 2010, the district court issued a separate judgment in favor of Denman. On September 30, De Leon filed a motion to vacate or modify the merits decision, invoking Rules 59 and 60 of the Federal Rules of Civil Procedure. De Leon argued that the parties' stipulated dismissal stripped the district court of jurisdiction over the merits.⁶ While the Rule 59 motion was pending, De Leon filed a petition for a writ of mandamus in this court seeking an order compelling the district court to vacate its merits ruling. On December 3, 2010, this court denied the petition, explaining that De Leon had not shown an indisputable right to the requested relief and also had adequate alternative remedies in the form of the pending Rule 59 motion and a direct appeal. See In re De Leon, No. 10–1488 (10th Cir. Dec. 3, 2010) (order denying petition for writ of mandamus).

On December 29, 2010, De Leon filed in the district court a “Notice of Withdrawal” of the Rule 59 motion and a notice of appeal to this court. On January 5, 2011, the clerk of this court ordered briefs on whether this court should summarily dismiss the appeal for lack of jurisdiction. The order framed the issue as follows:

Whether this court has jurisdiction where the notice of appeal was filed more than 30 days after entry of final judgment on September 27, 2010, and where the appellant withdrew his motion to vacate? See 28 U.S.C. § 2107(a); Fed. R.App. P. 4(a)(1)(A); Bowles v. Russell, 551 U.S. 205, 127 S.Ct. [sic] 2360, 2366 (2007) (“Today we make clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”). See also Vanderwerf v. Smithkline [sic] Beecham Corp., 603 F.3d 842 (10th Cir.2010) (holding that where the appealing party withdraws its post-judgment motion and the district court does not issue an order on the motion or the withdrawal, the time to appeal begins to run from the entry of final judgment).

De Leon v. Marcos, No. 10–1578 (10th Cir. Jan. 5, 2011) (clerk's briefing order).

Two days after the clerk issued the briefing order, De Leon returned to the district court to file a “Motion for Entry of Order Terminating Action Based on Withdrawal of Motion.” ECF No. 108. In relevant part, the motion read:

In order that [De Leon] may perfect his Notice of Appeal, he requests that this Court enter an order terminating this proceeding based on the Notice of Withdrawal of his Rule 59/60 Motion. (ECF # 102[.] ) An order from this Court disposing of the Motion would satisfy both FRAP Rule 4(a) and the Tenth Circuit's ruling in Vanderwerf v. Smithkline [sic] Beecham Corp., 603 F.3d 842 (10th Cir.2010).

Id. In a text-only docket entry, the district court ruled on...