Placid Oil Co. v. Ashland Oil, Inc.
| Citation | 792 F.2d 1127 |
| Decision Date | 06 March 1986 |
| Docket Number | No. 5-117.,5-117. |
| Parties | PLACID OIL COMPANY, Plaintiff-Appellee, v. ASHLAND OIL, INC., Defendant-Appellant. |
| Court | U.S. Temporary Emergency Court of Appeals Court of Appeals |
Fred W. Drogula, Patricia A. Blair (argued), Hilary Harp, and Ginsburg, Feldman and Bress, Chartered, Washington, D.C., for defendant-appellant.
Allen Weed (argued), Mark A. Petzinger (argued), and Shank, Irwin & Conant, Dallas, Tex., for plaintiff-appellee.
Before CHRISTENSEN, ESTES and DUNIWAY, Judges.
This case presents two technical questions: whether this court has jurisdiction, and whether, on appeal from a judgment of dismissal without prejudice, we can review denial of a motion for partial summary judgment. It also presents a question of what remedy is available when a party repeatedly says that it has abandoned or will abandon certain claims with prejudice and then does not do so. In this respect, this case is almost sui generis to the members of this panel.
Placid Oil Company filed this action in Texas state court in Dallas on March 20, 1985. The pertinent parts of Placid's petition read:
Ashland Oil removed the action to the United States District Court, on the basis of diversity of citizenship.
Meanwhile, On March 29, 1985, Placid filed a substantially identical action against Ashland in Louisiana state court. That action has been removed to the United States District Court in Louisiana, and is still pending there. In the Louisiana case, Placid attached copies of its invoices to Ashland which formed the basis of both actions. The Louisiana case has been stayed, pending disposition of this action.
On May 10, Ashland moved to dismiss the Texas action. It changed its motion to one for summary judgment on May 17. Copies of the invoices, thirteen in number, were attached to its motion. In this appeal, we are concerned with six of them, as follows:
Ashland argued before the District Court that the first three are barred by Texas' four year statute of limitations. Ashland has abandoned its claim that, as a matter of law, Placid did not certify the sales represented by the remaining 7 invoices in the manner required by Federal regulations.
Placid did not respond directly to Ashland's motion for summary judgment. Instead, on June 12, 1985, it filed a Motion for Voluntary Dismissal, under F.R.Civ.P. 41(a)(2). The only reason given by Placid in support of its motion was:
Two suits were filed by Placid in order to preserve its cause of action pending a determination of which state would be the most appropriate forum. Placid has now concluded that Louisiana would be the most appropriate forum for its action. Accordingly, Placid now seeks a dismissal of this Texas action so that it may pursue its claims in the proper forum.
(Record p. 84.)
Neither party has told us why Louisiana is "the most appropriate forum," but Ashland points out that it is arguable that the applicable Louisiana statute of limitations is a ten year statute, while Texas has a four year statute.
Later, on June 18, Placid did file a brief in opposition to Ashland's motion for summary judgment. (Rec. at 87.) In that brief it argued:
Although Placid does not object to the use of the four year statute of limitations, Placid will demonstrate that invoice numbers 21021 (Ex. 4), 21027 (Ex. 5), 21039 (Ex. 6) and 21054 (Ex. 7) are not time barred.
(Record p. 91.)
In the same brief, Placid said:
Placid hereby abandons the following invoiced claims: 20940, 20952, 20954, 21077 and 21165. (Record at 98.)
These are Exhibits 1, 2, 3, 8, and 12.
In its "Conclusion," on the same page, Placid again said:
Finally Placid abandons any claims as to invoice numbers 20940, 20952, 20954, 21077 and 21165. (Id.)
These claims total $987,297.31.
In its response to Placid's brief, Ashland argued that on the basis of this statement, the court should grant summary judgment for Ashland on those claims. (Record 107-108.)
Ashland also argued that it was entitled to summary judgment on exhibit 6, invoice 21039, dated March 4, 1981, because it is barred by the Texas four year statute. (Id. at 107.) An affidavit supplied by Placid states that the invoice was mailed on March 4. (Id. at 103.) An affidavit supplied by Ashland shows that it was received by Ashland on March 5. (Id. at 118-19.) Nowhere in the record is this contested. In its brief in opposition to summary judgment, one of Placid's arguments was that this invoice arose from the sale of Searcy Mixture crude oil, as the invoice states, and that under a former, cancelled contract between the parties, relating to such oil, payment was to be made by the buyer within ten days of receipt of the invoice. The contract is in evidence, Record p. 39, and that is what it says, (SECTION VI—PAYMENT), Rec. 44-47.
The trial court, in a brief opinion, concluded that there were questions of fact as to whether any of the invoices were barred by limitations and whether there were proper certifications under Federal regulations, and denied summary judgment. It then granted the motion to dismiss, without prejudice, so that Placid could pursue its Louisiana case. (Rec. 126-28.)
In its Response to Plaintiff's Placid's Reply Brief to Motion for Summary Judgment, Ashland refers to Placid's statement that it abandons the five claims, asks for summary judgment on them, argues that Ex. 6, invoice No. 21039, is barred by the four year Texas statute, and asks for summary judgment on that claim. It then says:
3. Ashland agrees that there are factual questions concerning the remainder of Placid's claims. Accordingly, to the extent the remainder of the case is not dismissed (see B below), Ashland intends to pursue discovery and will renew its motion for summary judgment on these claims when and if appropriate.
To the extent that this Court grants summary judgment on the six invoices which are either uncontested or clearly fall under the limitations period, Ashland does not object to voluntary dismissal as to Placid's claims on the remaining invoices. However, to the extent Placid seeks a dismissal without prejudice on all its claims, this Court should not grant Placid's motion for a dismissal without first entering summary judgment on—or dismissing with prejudice—(1) Placid's claims on invoices 20940, 20952, 20954, 21077 and 21165, which Placid concedes are barred by limitations, and (2) Placid's claim on invoice 21039 as to which there is no question of fact and which also is barred by limitations.
Accordingly, to the extent that this Court retains jurisdiction over the remaining part of the case (see Section B below), Ashland does not, at this time, object to the denial of its motion for summary judgment on invoices 21021, 21027, 21054, 21100, 21123, 21129, 68703, subject to the renewal of the motion after necessary and appropriate discovery.
To the extent this Court grants Ashland summary judgment on the six invoices discussed above (see pps. 1130-1131 supra), Ashland does not object to Placid's invoice claims.
In a letter to the District Judge, designated "letter brief by Plaintiff," counsel for Placid stated:
As noted in its Brief, Placid has abandoned any claims it may have for payment of five (5) crude oil invoices (numbers 20940, 20952, 20954, 21077 and 21165). (Record p. 121.)
Argument followed in favor of permitting voluntary dismissal of the remaining invoice claims. Then came this:
Placid reiterates its intent to abandon claims numbers 20940, 20952, 20954, 21077 and 21165. Placid, however, does not concede that such claims are barred either by the statute of limitations or by compliance with DOE regulations. In fact, Placid hotly disagrees with Ashland's analysis regarding these invoices. It would be more appropriate, however, for a Louisiana court to enter judgment on these claims as it would be passing on the merits of Placid's entire action. Further, this Court would not have to enter a partial judgment on a case which was subsequently pursued in Louisiana, and on claims which arose out of the sale of oil produced and purchased in Louisiana. If Ashland has any reservations regarding Placid's intentions, Placid would enter into a consent order of dismissal as to these five (5) claims in the Louisiana action.
In a letter to Ashland's counsel dated September 17, 1985, counsel for Placid stated:
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