Rosser v. Chrysler Corp.

Decision Date20 January 1989
Docket NumberNo. 87-2165,87-2165
PartiesNorman ROSSER, as Executor of the Estate of Evelyn Rosser, and Norman Rosser, Individually, Plaintiffs-Appellants, v. CHRYSLER CORPORATION, Acco Babcock, Inc., and John Koepele, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Paul W. Grauer, Paul W. Grauer & Assoc., Schaumburg, Ill., for plaintiffs-appellants.

Scott D. Hammer, Fraterrigo Best & Beranek, and Debra K. Marcus, Pappas Power & Marcus, Chicago, Ill., for defendants-appellees.

Before RIPPLE, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Based on diversity of citizenship, Norman Rosser brought an action against Chrysler Corporation, Acco Babcock, Inc., and John Koepele in federal court. Rosser later filed a separate suit in Illinois state court involving different defendants. Although Rosser did not include Chrysler, Babcock or Koepele in the Illinois proceeding, the state court defendants brought Chrysler and Babcock into that litigation as third-party defendants. Counsel for these parties indicated at oral argument that they were now primary defendants in that action.

On the basis of abstention, one of the defendants in the district court, Chrysler, moved to have the federal litigation dismissed, or in the alternative, stayed. The district judge dismissed the federal case against all three defendants, Chrysler, Babcock and Koepele, and gave Rosser leave to reinstate within 30 days. At a hearing scheduled on Rosser's subsequent motion to reinstate, the district judge struck the motion because Rosser's counsel failed to appear. Finally, the district judge reconsidered the motion to reinstate, denied it, and orally ordered the case dismissed. However, no final judgment either was set out on a separate document or was entered on the district court docket.

Before we determine whether the district judge properly dismissed the case before him, we must establish whether appellate jurisdiction exists under these circumstances. We first look to whether the district judge properly could grant dismissal of the entire case when only one of three defendants requested such action. We find that a district judge may grant a motion to dismiss even as to nonmoving defendants. Next, we must determine whether the judge's explicit oral pronouncements from the bench were sufficient to constitute a final appealable order in the case, notwithstanding the terse and uninformative minute entries which appear on the docket. We find that the judge's oral pronouncements were sufficient to indicate a final decision in the case before him. Then we look at whether the failure to set out the judgment of dismissal on a separate document or to enter the judgment on the civil docket of the district court presents a bar to our jurisdiction. We find that under the circumstances of this case, it did not. With all these questions answered in the affirmative, we have jurisdiction.

Having reconstructed the record and determined the existence of appellate jurisdiction, we are left with the issue of whether it was proper to dismiss this case on the basis of federal abstention. In regard to this issue, we conclude that abstention was proper but that dismissal was improper. The federal litigation should have been stayed because of the parallel state court action. We vacate the dismissal of this litigation and return this case to the district court with directions to enter a stay of the proceedings pending resolution of the pending state court action.


On July 31, 1984, Evelyn Rosser put her 1982 Chrysler LeBaron in "park" and got out of the car to open the garage door. The automobile apparently self-shifted from "park" into "reverse" and ran over her while she was in her driveway. She died a few hours later, as a result of the injuries she sustained. Her husband and executor of her estate, Norman Rosser, brought a wrongful death and survival action sounding in strict liability and negligence (as well as other claims which were dismissed) against the auto manufacturer, Chrysler, and the parts supplier, Babcock. An individual engineer, John Koepele, also was named as a defendant. Because Chrysler, Babcock and Koepele were not citizens of Illinois, Rosser lodged his suit in federal court on September 6, 1985. He filed his subsequent suit against several non-manufacturing defendants in Illinois state court. This suit did not name Chrysler, Babcock or Koepele. The state court defendants later named Chrysler and Babcock as third-party defendants in the Illinois state court action. Chrysler and Babcock mentioned at oral argument that they were now primary defendants in that case. Koepele was not named in the state court lawsuit.


The initial activity in the federal case was not unusual. It included the filing of an amended complaint, discovery matters and the dismissal of certain counts. At a status hearing on March 11, 1987, Chrysler submitted a written motion to dismiss Rosser's federal case, or, in the alternative, a stay of the federal action while the state action was pending. It was then that the problems in this case begin to appear. Babcock intended to join Chrysler's motion to dismiss, and gave notice of such intention to the other parties. Babcock's motion to join Chrysler's motion, however, never was filed with the district court. 1 Koepele (although represented by Chrysler's counsel) also did not join Chrysler's motion to dismiss. Rosser was given until April 1, 1987, to respond in writing to the motion to dismiss filed solely by Chrysler.

Rosser, however, filed no written response to the motion to dismiss by the April 1 deadline. 2 Thus, by the time of the May 13 hearing on Chrysler's motion to dismiss, the district judge had prepared a written draft granting dismissal. At the May 13 hearing, plaintiff's counsel stated:

Your Honor, the status of this matter is that Chrysler had moved to dismiss on the basis that we had a State Court action that was pending that was similar within the last week. The plaintiff decided to dismiss the State Court action and has filed a motion in the State Court to do that.

(R. 83-2, at 2). Thereafter, the district judge indicated that the matter was before the court for a ruling and he would read his draft order into the record and indicated to counsel that they could "react to it."

The order read into the record by Judge Norgle indicated that the plaintiff had not responded to Chrysler's motion and the ruling was made without the benefit of plaintiff's response. Judge Norgle then granted Chrysler's motion to dismiss the federal case, giving Rosser leave to reinstate within 30 days.

Koepele's (Chrysler's) counsel made no comment with regard to the claim against defendant Koepele set out in Rosser's amended complaint. Babcock's attorney asked the district judge at the conclusion of the hearing whether this dismissal was as to all defendants, claiming, incorrectly 3, that Babcock had joined in Chrysler's motion. The judge responded that he was dismissing the federal action as to "Whoever did join in the motion--I have this only in draft form, so I don't have the heading on the order; but, I meant to dismiss the entire matter, with leave to reinstate within 30 days." (R. 83-2, at 4).

In fact, neither Koepele nor Babcock had joined in Chrysler's motion to dismiss. The judge, moreover, seemed to have indicated both that he was dismissing as to whoever had joined in the motion and that he was dismissing the entire matter. The events of June 25, discussed below, make it clear, however, that Judge Norgle intended to dismiss the case as to all three defendants.

The minute entry of the May 13 hearing, docketed five days later, under the caption "Norman Rosser -vs- Chrysler Corporation," with no reference to Babcock or Koepele, states: "Cause dismissed with leave to reinstate within 30 days." No final judgment was entered on the district court docket.

Rosser made a timely filing to reinstate the federal case on May 26, 1987. His attorney, however, failed to appear for the June 5, 1987 hearing on his motion 4 and the judge orally announced from the bench that: "the movant [Rosser] has failed to appear. His motion to reinstate is stricken. So ordered." Although this could be interpreted to mean that Judge Norgle was denying Rosser's motion to reinstate, the docket entry for that date states that: "plaintiff's motion to reinstate is stricken from the call " (R. 74) (emphasis added), indicating only that the motion would not be heard on that day. This is borne out by the fact that, without any notice in the record, a subsequent hearing on the motion to reinstate was held on June 25.

At the June 25 hearing, Judge Norgle indicated to Rosser's counsel that:

When you failed to appear on the motion on June 5th, the Court struck the motion. Now, had you appeared, then it would have been routinely granted, because I had previously granted leave to reinstate within 30 days. So, it is only your failure to appear that caused the motion to be stricken and, therefore, not granted.

(R. 83-4, at 2-3) (emphasis added). With regard to plaintiff's lack of attention to the federal litigation the district judge then went on to say that the federal case had been pending for well over two years and was "hardly off the ground." The judge then indicated that because there had been no movement in federal court for more than two years he should "defer to the State Courts and let them resolve all matters pending there ... [s]o, the motion to reinstate Case 85 C 7795 is denied, and this matter is dismissed." (R. 83-4, at 8-9) (emphasis added).

It is apparent that the decision to dismiss the case was based on abstention and the district judge obviously terminated the litigation of this case in federal court as to all the parties. However, the minute entry describing the action taken...

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