Payne ex rel. Estate of Calzada v. Brake

Decision Date01 March 2006
Docket NumberNo. 04-2357.,No. 04-2424.,No. 04-2348.,No. 04-2356.,04-2348.,04-2424.,04-2356.,04-2357.
Citation439 F.3d 198
PartiesKelly PAYNE, personal representative of the ESTATE OF Eduardo CALZADA, Plaintiff-Appellee, v. Mark BRAKE, Officer for the City of Charlottesville; Kelly Harrison, Officer for the City of Charlottesville; Mark Gillespie, Officer for the County of Albemarle; C. Scott Miller, Officer for the County of Albemarle-Charlottesville Regional Jail; Frank Johnson, Sergeant for the Albemarle-Charlottesville Regional Jail; Michael Fehl, Sergeant for the Albemarle-Charlottesville Regional Jail; Christopher A. Bibb, Officer for the Albemarle-Charlottesville Regional Jail; Keith Bazemore, Officer for the Albemarle-Charlottesville Regional Jail; Fred Kirschnick, Officer for the Albemarle-Charlottesville Regional Jail; Gerald Patrick Kinlaw, Officer for the Albemarle-Charlottesville Regional Jail; Eddie Shifflet, Officer for the Albemarle-Charlottesville Regional Jail; Gary Ferland, Officer for the Albemarle-Charlottesville Regional Jail; Asiberia Igbani, Officer for the Albemarle-Charlottesville Regional Jail; Jerome Hill, Officer for the Albemarle-Charlottesville Regional Jail; Phillip Barfield, Officer for the Albemarle-Charlottesville Regional Jail; Billy Bingler, Officer for the Albemarle-Charlottesville Regional Jail; John Woodson, Officer for the Albemarle-Charlottesville Regional Jail; Sheila Coley, Nurse for the Albemarle-Charlottesville Regional Jail; John Isom, Superintendent of the Albemarle-Charlottesville Regional Jail; in his official and individual capacities; Robert Beatty, Deputy Superintendent of the Albemarle-Charlottesville Regional Jail, in his official and individual capacities; Albemarle-Charlottesville Regional Jail Authority; Albemarle-Charlottesville Regional Jail Board, Defendants-Appellants, and Cheryl A. Thompson, Magistrate for the 16th Judicial District, Defendant. Kelly Payne, personal representative of the Estate of Eduardo Calzada, Plaintiff-Appellee, v. Mark Brake, Officer for the City of Charlottesville; Kelly Harrison, Officer for the City of Charlottesville; Mark Gillespie, Officer for the County of Albemarle; C. Scott Miller, Officer for the County of Albemarle-Charlottesville Regional Jail; Frank Johnson, Sergeant for the Albemarle-Charlottesville Regional Jail; Michael Fehl, Sergeant for the Albemarle-Charlottesville Regional Jail; Christopher A. Bibb, Officer for the Albemarle-Charlottesville Regional Jail; Keith Bazemore, Officer for the Albemarle-Charlottesville Regional Jail; Fred Kirschnick, Officer for the Albemarle-Charlottesville Regional Jail; Gerald Patrick Kinlaw, Officer for the Albemarle-Charlottesville Regional Jail; Eddie Shifflet, Officer for the Albemarle-Charlottesville Regional Jail; Gary Ferland, Officer for the Albemarle-Charlottesville Regional Jail; Asiberia Igbani, Officer for the Albemarle-Charlottesville Regional Jail; Jerome Hill, Officer for the Albemarle-Charlottesville Regional Jail; Phillip Barfield, Officer for the Albemarle-Charlottesville Regional Jail; Billy Bingler, Officer for the Albemarle-Charlottesville Regional Jail; John Woodson, Officer for the Albemarle-Charlottesville Regional Jail; Sheila Coley, Nurse for the Albemarle-Charlottesville Regional Jail; John Isom, Superintendent of the Albemarle-Charlottesville Regional Jail, in his official and individual capacities; Robert Beatty, Deputy Superintendent of the Albemarle-Charlottesville Regional Jail, in his official and individual capacities; Albemarle-Charlottesville Regional Jail Authority; Albemarle-Charlottesville Regional Jail Board, Defendants-Appellants, and Cheryl A. Thompson, Magistrate for the 16th Judicial District, Defendant. Kelly Payne, personal representative of the Estate of Eduardo Calzada, Plaintiff-Appellee, v. Mark Brake, Officer for the City of Charlottesville; Kelly Harrison, Officer for the City of Charlottesville; Mark Gillespie, Officer for the County of Albemarle; C. Scott Miller, Officer for the County of Albemarle-Charlottesville Regional Jail; Frank Johnson, Sergeant for the Albemarle-Charlottesville Regional Jail; Michael Fehl, Sergeant for the Albemarle-Charlottesville Regional Jail; Christopher A. Bibb, Officer for the Albemarle-Charlottesville Regional Jail; Keith Bazemore, Officer for the Albemarle-Charlottesville Regional Jail; Fred Kirschnick, Officer for the Albemarle-Charlottesville Regional Jail; Gerald Patrick Kinlaw, Officer for the Albemarle-Charlottesville Regional Jail; Eddie Shifflet, Officer for the Albemarle-Charlottesville Regional Jail; Gary Ferland, Officer for the Albemarle-Charlottesville Regional Jail; Asiberia Igbani, Officer for the Albemarle-Charlottesville Regional Jail; Jerome Hill, Officer for the Albemarle-Charlottesville Regional Jail; Phillip Barfield, Officer for the Albemarle-Charlottesville Regional Jail; Billy Bingler, Officer for the Albemarle-Charlottesville Regional Jail; John Woodson, Officer for the Albemarle-Charlottesville Regional Jail; Sheila Coley, Nurse for the Albemarle-Charlottesville Regional Jail; John Isom, Superintendent of the Albemarle-Charlottesville Regional Jail, in his official and individual capacities; Robert Beatty, Deputy Superintendent of the Albemarle-Charlottesville Regional Jail, in his official and individual capacities; Albemarle-Charlottesville Regional Jail Authority; Albemarle-Charlottesville Regional Jail Board, Defendants-Appellants, and Cheryl A. Thompson, Magistrate for the 16th Judicial District, Defendant. Kelly Payne, personal representative of the Estate of Eduardo Calzada, Plaintiff-Appellant, v. Kelly Harrison, Officer for the City of Charlottesville; Michael Fehl, Sergeant for the Albemarle-Charlottesville Regional Jail; Christopher A. Bibb, Officer for the Albemarle-Charlottesville Regional Jail; Keith Bazemore, Officer for the Albemarle-Charlottesville Regional Jail; Eddie Shifflet, Officer for the Albemarle-Charlottesville Regional Jail; Phillip Barfield, Officer for the Albemarle-Charlottesville Regional Jail, Defendants-Appellees, and Mark Brake, Officer for the City of Charlottesville; C. Scott Miller, Officer for the County of Albemarle-Charlottesville Regional Jail; Mark Gillespie, Officer for the County of Albemarle; Frank Johnson, Sergeant for the Albemarle-Charlottesville Regional Jail; Fred Kirschnick, Officer for the Albemarle-Charlottesville Regional Jail; Gerald Patrick Kinlaw, Officer for the Albemarle-Charlottesville Regional Jail; Gary Ferland, Officer for the Albemarle-Charlottesville Regional Jail; Asiberia Igbani, Officer for the Albemarle-Charlottesville Regional Jail; Jerome Hill, Officer for the Albemarle-Charlottesville Regional Jail; Billy Bingler, Officer for the Albemarle-Charlottesville Regional Jail; John Woodson, Officer for the Albemarle-Charlottesville Regional Jail; Sheila Coley, Nurse for the Albemarle-Charlottesville Regional Jail; John Isom, Superintendent of the Albemarle-Charlottesville Regional Jail, in his official and individual capacities; Robert Beatty, Deputy Superintendent of the Albemarle-Charlottesville Regional Jail, in his official and individual capacities; Albemarle-Charlottesville Regional Jail Authority; Albemarle-Charlottesville Regional Jail Board; Cheryl A. Thompson, Magistrate for the 16th Judicial District, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Helen Eckert Phillips, Stanardsville, Virginia, for Appellants/Cross-Appellees. Neal Lawrence Walters, Charlottesville, Virginia, for Appellee/Cross-Appellant. ON BRIEF: Elisabeth M. Ayyildiz, Morin & Barkley, Charlottesville, Virginia; Patrick C. Asplin, Keeler Obenshain, P.C., Charlottesville, Virginia; Cheryl V. Higgins, St. John, Bowling & Lawrence, Charlottesville, Virginia, for Appellants/Cross-Appellees. Deborah C. Wyatt, Wyatt & Armstrong, P.L.C., Charlottesville, Virginia, for Appellee/Cross-Appellant.

Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge TRAXLER wrote the opinion, in which Judge NIEMEYER and Judge MOTZ joined.

TRAXLER, Circuit Judge.

The district court dismissed this wrongful death action on statute of limitations grounds, but dismissed it "without prejudice," in light of a recent decision from the Virginia Supreme Court that effectively revived the limitations period. The defendants appeal, claiming the dismissal should have been with prejudice. The plaintiff cross-appeals, arguing that the district court lacked subject matter jurisdiction due to a flaw in the removal from state court and that the district court abused its discretion in setting aside certain default judgments. We affirm.

I.

This case involves peculiar procedural facts. In October 2000, just prior to the expiration of the two-year limitations period, Kelly Payne filed a wrongful death action in a Virginia state court as the personal representative of Eduardo Calzada (the "First Action"). After almost a year of inaction, Payne had not served any of the defendants with process. One day before the time period for proper service expired, Payne filed a notice of voluntary dismissal or "nonsuit." However, Payne failed to obtain a nonsuit order from the court as required by Virginia law to toll the statute of limitations. See Va.Code Ann. 8.01-229(E)(3) (2005). The First Action therefore remained "active" and on the state court docket. Under Virginia law, had Payne received a nonsuit order, she would have had an additional six months to re-file her claim and remain within the statute of limitations. See id.

Payne apparently believed that her nonsuit was proper and that it extended her limitations period. Thus, she re-filed her case in state court in April 2002 (the "Second Action") against the currently named defendants ("Defendants"). Defendants removed the action to district court. It is the Second Action that is currently on appeal before this court.

After Payne filed the...

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