Emery v. Woods Industries, et al.

2001 DNH 207

• Court: District Court, D. New Hampshire
• Decided: November 9, 2001
• Docket: CV-98-480-M
• Status: Published

Opinion

Emery v . Woods Industries, et a l . CV-98-480-M 11/09/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John Emery, Plaintiff

v. Civil N o . 98-480-M Opinion N o . 2001 DNH 207 Woods Industries, Inc., Test-Rite International Co., Ltd. ( U . S . ) , Test-Rite International Co., Ltd. (Taiwan and Anonymous I I , Inc. (formerly Woods Wire Product, I n c . ) , Defendants

O R D E R

In September of 2001, plaintiff agreed (at least in

principle) to the terms of a settlement with Woods Industries,

Inc., Woods Wire Products, Inc., and Anonymous I I , Inc.

Apparently satisfied with that agreement, plaintiff appears to

have decided not to pursue his claims against the remaining

defendants, including Test-Rite International Co., Ltd (Taiwan)

(“Test-Rite”). Accordingly, on September 5 , 2001, plaintiff’s

attorney telephoned a deputy clerk of court to notify her that a

settlement had been reached with some of the defendants and, because plaintiff was not going to pursue his claims against the

remaining defendants, the trial scheduled for the first week in

October could be cancelled. Pursuant to Local Rule 41.1, the

deputy placed the following entry on the docket:

Atty. David Johnston from Atty. Ewing’s office advised case settled. Agreement for entry of judgment or a stipulation of dismissal to be filed within 30 days or the court will dismiss the case with prejudice. Case settlement deadline 10/5/01.

Docket entry, September 5 , 2001.1

On September 1 4 , 2001, Attorney Ewing submitted a letter in

which he formally advised the court that plaintiff had settled

his claims against the various Woods Industries defendants and,

therefore, the trial scheduled for October could be removed from

the court’s calendar. Attorney Ewing also advised that his

1 Local Rule 41.1 provides, “The parties shall promptly inform the clerk when a case settles and within thirty (30) days thereafter file either a signed agreement for the entry of judgment or a stipulation for dismissal. If neither an agreement for judgment nor a stipulation for dismissal is timely filed, the court will dismiss the case with prejudice.”

2 client would submit a stipulation for dismissal once that

document had been executed by the appropriate parties. The

October 5th deadline referenced in the docket entry passed, but

no stipulation for dismissal was submitted. Nevertheless, the

court did not enter any order dismissing plaintiff’s claims.

And, on October 1 0 , 2001, the court granted defendant Woods

Industries’ partially assented-to motion for leave to file cross

claims against the Test-Rite defendants. That same day, the

court also granted plaintiff’s motion to withdraw counts 2 , 3 , 4 ,

and 6 of his amended complaint.

Test-Rite now moves the court t o : (1) vacate its order of

October 1 0 , by which it granted Woods’ motion for leave to file

cross claims; and (2) dismiss plaintiff’s case, in its entirety,

with prejudice. In support of its motion to dismiss plaintiff’s

claims with prejudice, Test-Rite argues that, based upon

plaintiff’s telephone call to the court, his follow-up letter

advising that the scheduled trial could be removed from the

court’s calendar, and the September 5th docket entry, the case

3 was “settled” by early September. Moreover, Test-Rite seems to

assert that plaintiff’s case was (or should have been) dismissed

by operation of Local Rule 41.1 on October 5th (i.e., after Woods

filed its motion for leave to file cross claims, but before the

court granted that motion). Test-Rite is mistaken.

First, Test-Rite does not (nor could it) rely upon any

agreement with plaintiff as the basis for its assertion that his

claims against it are settled. Test-Rite refused to participate

in mediation and is not a party to plaintiff’s settlement

agreement with Woods. Instead, Test-Rite merely seeks to benefit

from plaintiff’s settlement with the other defendants and

plaintiff’s (apparent) decision not to pursue further action

against Test-Rite. And, in support of that strategy, it invokes

Local Rule 41.1 and the September 5th docket entry.

Importantly, however, neither the court’s Local Rules nor

the September 5th docket entry are self-executing. Local Rule

41.1 is a case management tool, enacted to assist the court in

4 managing its docket. The docket entry serves to remind the

parties of the terms of that rule and the potential sua sponte

consequences should they fail to comply. Contrary to Test-Rite’s

suggestion, cases are not “dismissed” or “closed” until the court

enters an appropriate order or judgment to that effect. No such

order or judgment has been entered in this case, which remains

open and active. S o , to the extent Test-Rite’s motion seeks an

order dismissing plaintiff’s claims with prejudice, it is denied.

However, Test-Rite’s motion to vacate the order granting

Woods’ motion for leave to file cross claims, is granted. Test-

Rite accurately notes that the court granted Woods’ motion on

October 1 2 , 2001, or two days prior to the expiration of the time

within which Test-Rite had to file an objection, taking into

account intervening weekends, holidays, and mail rule.

Accordingly, Test-Rite shall be afforded an additional two

business days (from Tuesday, November 1 3 , 2001) within which to

file an objection to Woods’ motion (the court assumes that if

Test-Rite intended to oppose that motion, it substantially

5 completed any objection and memorandum it planned to file by

October 1 0 , when the order was signed).

The Clerk of Court shall contact counsel for Test-Rite by

telephone and inform them that they have until close of business

on Thursday, November 1 5 , 2001, to file an objection.

Conclusion

Test-Rite’s motion to vacate the court’s order of October

1 0 , 2001, is granted; its motion to dismiss plaintiff’s claims

with prejudice (document n o . 68) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

November 9, 2001

cc: Scott A . Ewing, Esq. Richard E . Mills, Esq. Douglas J. Miller, Esq. David L. Weinstein, Esq.