Parker v. Freightliner Corp., 89-2827
| Decision Date | 13 August 1991 |
| Docket Number | No. 89-2827,89-2827 |
| Citation | 940 F.2d 1019 |
| Parties | Willie PARKER, Plaintiff-Appellant, v. FREIGHTLINER CORPORATION and National Seating Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James P. Costello, Bradley D. Birge (argued), Des Plaines, Ill., for plaintiff-appellant.
Jeffrey L. Madoff, Matkov, Salzman, Madoff & Gunn, James K. Perrin (argued), Haskell & Perrin, David P. Cutler (argued), Terrence J. Goggin, Goggin, Cutler & Hull, Chicago, Ill., for defendants-appellees.
Before POSNER, FLAUM and KANNE, Circuit Judges.
Willie Parker, an over-the-road truck driver for Consolidated Freightways, was injured while driving a tractor trailer from Peru, Illinois to Kansas City, Missouri. Seeking compensation for the injuries he suffered, Parker brought a single-count, products liability suit against Freightliner Corporation, the manufacturer of the vehicle, and National Seating Company, the manufacturer of the seating suspension system in the Freightliner tractor. Parker now appeals from the district court's grant of summary judgment in favor of both defendants.
Parker's suit arises out of a hauling trip he made to Kansas City on November 20, 1983. Before starting out for Kansas City, Parker inspected the truck he was to drive, a Freightliner 1600 series tractor equipped with a National Seating Cush-N-Air Model 95 air suspension seating system. In the tractor unit, Parker found two "cry cards"--a system drivers for Consolidated Freightways used to alert the company, as well as other drivers, to any problems or damage to a tractor trailer or its component parts. According to Parker, one of the cry cards registered a previous driver's complaint about the seat's suspension system and stated that the seat needed to be replaced. His own inspection similarly revealed that the tractor seat was worn and unstable, rocked back and forth, and leaked air. Parker informed Consolidated Freightway's dispatchers about the problems, but after checking the seat they assured him that the seat was fine.
He then proceeded on his run to Kansas City. During the trip, the tractor's seat continually lost air, forcing Parker to add air every 18-25 minutes (3-5 times before the accident) in order to keep the seat comfortably inflated. The accident occurred when Parker, driving in a heavy rain at approximately 45-50 miles per hour, struck a dip in the road and the tractor seat collapsed or "bottomed out." As a result of the seat's alleged failure, Parker was catapulted into the roof of the cab and injured.
Despite the collapse of the seat and the injuries he suffered, Parker continued to Kansas City. Upon his arrival, he completed a cry card describing the problems he had experienced with the tractor's suspension system and air seat. He later filed a workers' compensation claimant's statement for the occurrence. In his statement, Parker asserted that the tractor he was driving had a "bad front end" and possibly "bad springs." Parker also alleged that "with the tractor's front end in such a bad condition, when it passed over a bump in the road I [Parker] hit my head on the top of the cab and was thrown partly out of the seat jamming my head, neck and shoulder."
On November 1, 1985, Parker filed his original complaint, which named both Freightliner and National Seating as defendants, in the Circuit Court of Cook County, Illinois. After being served with a summons, National Seating removed the case to the United States District Court for the Northern District of Illinois. But, although named as a defendant in the lawsuit, Freightliner was not served with a summons and did not become involved in the suit at that time.
Despite Freightliner's absence, National Seating and Parker proceeded with discovery pursuant to a district court order requiring all occurrence discovery to be completed by July 31, 1986. The order also set the same date for a further status hearing. Parker, however, ignored three sets of interrogatories which National Seating had filed for answer and discovery was not completed by the court-ordered date. The plaintiff's disregard for the district court's orders did not end there. In July, Parker's counsel failed to appear for the scheduled status hearing. When informed of Parker's noncompliance with its previous order, the district court entered an order requiring Parker to answer National Seating's interrogatories by August 7, 1986, and set a further status conference for August 14, 1986. The plaintiff appeared at this hearing, but again failed to provide signed answers to the interrogatories. So, the district court entered yet another order requiring Parker to provide National Seating with signed answers by August 15, 1986, ordered all discovery completed by November 12, 1986, and scheduled the final pretrial order to be due on December 3, 1986.
Frustrated by Parker's lack of cooperation and diligence in pursuing the litigation, National Seating brought a motion to bar plaintiff's expert testimony because of his failure to comply with the court's discovery orders. Appearing before the district court, Parker's counsel finally provided signed answers for the first set of interrogatories, but objected to the second set and failed to respond to the set of interrogatories directed to experts. He also refused, or was unable, to disclose the names of expert witnesses he intended to call to support any of the allegations of his complaint. At the hearing, Parker's attorney also admitted to the court that he had not yet filed the final pre-trial order required by the order. On December 5, 1986, apparently less than impressed by Parker's repeated failures to comply with its orders, the district court granted National Seating's motion to bar any expert testimony that might be offered by Parker.
Four days later, Freightliner made its first appearance before the district court to ask for permission to file an answer to Parker's complaint. 1 The district court granted the request and Freightliner promptly filed its answer to Parker's complaint the next day, December 10, 1986. Although Parker did not object to Freightliner's late answer at the time, he did bring a motion for voluntary dismissal against Freightliner pursuant to Federal Rule of Civil Procedure 41. But, rather than grant the dismissal, the court continued Parker's motion in order to give the parties an opportunity to settle the litigation.
Attempts at settlement, however, proved futile. While National Seating agreed to settle the case, its proposal was contingent on Freightliner's agreement to match its $1,500.00 settlement contribution. This was an offer Freightliner could (and did) refuse. Finally, recognizing that no settlement agreement was forthcoming, the district court granted the plaintiff's motion for a voluntary dismissal with respect to both defendants on February 6, 1987.
Fearing that a voluntary dismissal would allow Parker to avoid the district court's previous order prohibiting his use of expert testimony, National Seating shortly thereafter brought a motion to amend the court's order granting Parker's voluntary dismissal to include the condition that, in the event Parker elected to refile his original action, the court's December 5, 1987 order barring expert testimony would remain in effect in any refiled action. 2 Over Parker's objection, the district court agreed and amended the order on February 17, 1987. Parker took no steps at that time to challenge the district court's order.
Nearly a year later, Parker refiled his original action in federal district court--this time promptly serving both Freightliner and National Seating. The parties again commenced discovery, with fact discovery to have been closed on January 2, 1989, and experts to have been identified by January 17, 1989. But, the plaintiff again did not disclose the names of his expert witnesses by the court-imposed deadline. Both defendants then filed motions for summary judgment on March 1, 1989. After reviewing the briefs of all parties, the district court concluded that Parker had failed to refute reasonable secondary causes of the accident and granted summary judgment in favor of both defendants.
We face two challenges to our jurisdiction over this appeal. First, Parker maintains that the district court lacked jurisdiction over Freightliner because he had voluntarily dismissed his action against it pursuant to FED.R.CIV.P. 41(a)(1)(i). See McCall-Bey v. Franzen, 777 F.2d 1178 (7th Cir.1985); In re International Business Machines Corp., 687 F.2d 591, 598, 600-03 (2d Cir.1982). As a result, Parker argues that the district court's order barring his use of expert witness testimony as a discovery sanction was a legal nullity with respect to Freightliner and, consequently, he should have been free to utilize expert witnesses in his refiled case against Freightliner. Freightliner views the situation quite differently. It maintains that Parker's dismissal was actually pursuant to Rule 41(a)(2)--not Rule 41(a)(1)(i)--and that Parker's present appeal is untimely because he was required to appeal the dismissal immediately because the attached condition substantially prejudiced his ability to bring a later suit. See Cauley v. Wilson, 754 F.2d 769 (7th Cir.1985). As an initial matter, we therefore must determine what type of voluntary dismissal was involved in the initially filed lawsuit.
Under Rule 41(a)(1)(i), "an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs." FED.R.CIV.P. 41(a)(1)(i). Thus, as one court has noted:
Rule 41(a)(1)(i) is the shortest and surest route to abort a complaint when it is applicable. So long as plaintiff has not been served with his adversary's answer or motion for summary...
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