2021 WL 5999133

United States District Court, D. Idaho.
GARGOYLE GRANITE & MARBLE, INC., Plaintiff,
v.
OPUSTONE, LLC, dba OPUSTONE STONE TILE CONCEPTS; CH ROBINSON WORLDWIDE, INC.; and UPS GROUND FREIGHT, INC., dba UPS FREIGHT, Defendants.
Ct. No. 2:21-cv-00127-MMB
|
Filed 12/20/2021

OPINION AND ORDER STRIKING PLAINTIFF’S STIPULATION OF DISMISSAL AND DENYING PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT JUDGMENT
M. Miller Baker, Judge8
*1 Plaintiff Gargoyle Granite & Marble has filed a “stipulation for dismissal without prejudice” of its claims against Defendant CH Robinson Worldwide, Inc. (ECF 30), as well as a “Memorandum of Costs and Fees” seeking recovery of $75,829.77 from Defendant UPS Ground Freight, Inc. (ECF 31), which the court construes as a motion for entry of default judgment. For the reasons set forth below, the court strikes Gargoyle’s stipulation of dismissal and denies its motion for entry of default judgment as to UPS.

Factual and Procedural Background
Gargoyle, an entity in Northern Idaho, purchased ornamental stone from Opustone, LLC, a vendor in Miami, Florida, for installation in a construction project. Robinson arranged for shipment through UPS. During shipment, the stone was damaged and Gargoyle refused to accept delivery.

Gargoyle then brought this action against Opustone, Robinson, and UPS. ECF 1. Gargoyle’s complaint alleges four counts. Id. ¶¶ 17–32. Count One alleges that UPS and Robinson are liable for the actual loss of or injury to the product under the Carmack Amendment, 49 U.S.C. § 14706, as “motor carriers” or “freight forwarders.” Id. ¶ 18. Count Two alleges that Opustone breached its contract with Gargoyle. Id. ¶¶ 22–23. Count Three asserts a UCC claim against Opustone under Idaho law. Id. ¶¶ 25–28. Finally, Count Four alleges negligence against “Defendants.” Id. ¶¶ 29–32.

After Gargoyle effectuated service of process on all three defendants, ECF 5, 6, 8, Robinson and Opustone moved to dismiss. ECF 15, ECF 13. UPS, however, failed to respond or otherwise appear and the Clerk entered UPS’s default under Fed. R. Civ. P. 55(a) on July 15, 2021. ECF 23.

On November 22, 2021, the court resolved motions to dismiss filed by Opustone and Robinson. ECF 29. In relevant part, the court (1) dismissed Gargoyle’s claims against Opustone with prejudice; (2) dismissed Count One without prejudice insofar as it related to Robinson; and (3) dismissed Count Four with prejudice insofar as it related to Robinson. ECF 29, at 43–44. The order gave Gargoyle 28 days to replead Count One’s Carmack Amendment claim against Robinson, and further provided that if Gargoyle failed to do so, “Count One shall be deemed dismissed with prejudice insofar as it relates to Robinson.” Id. at 44. Thus, Gargoyle had until December 20, 2021, to replead Count One as to Robinson.

Instead of so repleading Count One, on December 16, 2021, Gargoyle filed a stipulation between itself and Robinson. The stipulation states that “the parties wish to dismiss this litigation without pursuing and/or defending any amended pleading,” ECF 30, at 1, and further states that Gargoyle and Robinson “hereby stipulate and agree that this action shall be dismissed against CH Robinson Worldwide, Inc.[,] without prejudice, each party to bear its own costs and fees,” id. at 2.

On the same day, Gargoyle filed a document titled “Memorandum of Costs and Fees.” ECF 31. This document takes the form of a two-page affidavit from Gargoyle’s counsel requesting entry of judgment of $75,829.77 against UPS. Id. at 2. As the basis for that figure, the document merely itemizes the filing fee ($402.00), the cost of serving UPS ($65.40), the damages ($60,362.37) requested in the complaint, and the attorney’s fees ($15,000) requested in the complaint if judgment were entered by default. Id. Gargoyle attached no evidence in support of the claimed amounts. Nor did Gargoyle assert any legal argument demonstrating UPS’s liability under Counts One and Four if the facts alleged in the complaint are taken as admitted.

*2 In connection with both filings, Gargoyle tendered a proposed judgment via e-mail to the Case Manager; for purposes of the appellate record, it is attached hereto as an addendum.1

Discussion
I.
Rule 41 of the Federal Rules of Civil Procedure allows a plaintiff to dismiss an action without a court order via either of two means: (i) filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment,” Fed. R. Civ. P. 41(a)(1)(A)(i), or (ii) filing “a stipulation of dismissal signed by all parties who have appeared,” Fed. R. Civ. P. 41(a)(1)(A)(ii). The court construes the document as a Rule 41(a)(1)(A)(i) notice of dismissal as to Gargoyle’s claims against Robinson.

“Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment.” Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). “The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice,” and “[t]he filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice.” Id.

Notwithstanding that principle, the court is unaware of any authority allowing a plaintiff to voluntarily dismiss its claims without prejudice after the court has already dismissed those claims. In the court’s view, Rule 41(a)(1) necessarily presupposes the existence of live claims to be voluntarily dismissed. As the court dismissed Gargoyle’s claims against Robinson on November 22, 2021, there were no claims left for Gargoyle to voluntarily dismiss when it filed its stipulation three weeks later. In short, Gargoyle closed the barn door after the horse escaped.

The court therefore strikes the purported stipulation of dismissal because that document is a legal nullity. The court, however, will extend the time for Gargoyle to replead Count One as to Robinson until January 3, 2022.2 If Gargoyle fails to so replead by that deadline, Count One will be deemed dismissed with prejudice as to Robinson.

II.
The process of obtaining a default judgment in federal court involves two steps. First, the plaintiff must demonstrate that a defendant “has failed to plead or otherwise defend,” upon which the Clerk of Court must enter that defendant’s default. Fed. R. Civ. P. 55(a). Second, the plaintiff must seek entry of a default judgment. Fed. R. Civ. P. 55(b). In this case, the Clerk of Court entered UPS’s default under Rule 55(a) on July 15, 2021. ECF 23. Therefore, the court construes Gargoyle’s “Memorandum of Costs and Fees” as a motion for default judgment against UPS under Rule 55(b).

*3 There are two ways in which a default judgment may be entered under Rule 55(b). “If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk—on the plaintiff’s request, with an affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing ….” Fed. R. Civ. P. 55(b)(1). “In all other cases, the party must apply to the court for a default judgment,” Fed. R. Civ. P. 55(b)(2), and in such cases the court may conduct hearings as needed to, inter alia, determine the amount of damages, establish the truth of any allegation by evidence, or investigate any other matter, Fed. R. Civ. P. 55(b)(2)(B)–(D).3

A.
Whether Gargoyle’s “Memorandum of Costs and Fees” is characterized as brought under Rule 55(b)(1) or Rule 55(b)(2), the Clerk (in the case of Rule 55(b)(1)) and the court (in the case of Rule 55(b)(2)) would still have to deny it at this time because there is an antecedent obstacle. The Ninth Circuit has held—applying the time-honored principles set forth in Frow v. De La Vega, 15 Wall. 552 (1872)—that where a case involves two similarly-situated defendants, a default judgment should not be entered against one defendant until the matter has been adjudicated on the merits as to the other defendant. In re First T.D. & Inv., Inc., 253 F.3d 520, 532 (9th Cir. 2001). The court explained that any other rule would allow for the illogical and incongruous scenario in which the defaulting defendant is held liable for damages on a claim that is later rejected on the merits against the other defendant. Id. And under this rule, if adjudication of a claim against a similarly-situated defendant necessarily exonerates or absolves a defaulting defendant, neither the clerk nor the court can thereafter enter a default judgment against the defaulting defendant. See Grumpy Cat Ltd. v. Grenade Beverage LLC, No. SACV 15-2063-DOC (DFM), 2016 WL 7507768, at *4 (C.D. Cal. Sept. 21, 2016) (“The Ninth Circuit reasoned that it would not be fair or just for defaulting defendants to have a final judgment entered against them while co-defendants have disproved the same claims.”).

*4 Here, Gargoyle asserts two counts against both UPS and Robinson—Counts One and Four.

1.
Count One of Gargoyle’s complaint alleges that UPS and Robinson, as “motor carriers or freight forwarders,” are liable under the Carmack Amendment “for the actual loss or injury” to the stone, “which occurred during shipping.” ECF 1, ¶ 18.

The court has dismissed Count One as to Robinson without prejudice for the reason that the complaint fails to adequately plead facts that the company is either a “motor carrier” or “freight forwarder,” and, as described above, the court has extended the time for Gargoyle to replead until January 3, 2022. If Gargoyle opts not to replead and lets nature take its course, Count One will be deemed dismissed with prejudice as to Robinson, and thereby finally adjudicated.

That adjudication—if Gargoyle allows it to happen by failing to replead by January 3, 2022—will not bar the subsequent entry of default judgment as to UPS, because it will establish that Robinson is not a “motor carrier” or “freight forwarder,” meaning that Robinson and UPS are not similarly situated.

On the other hand, if Gargoyle opts to replead Count One as to Robinson—or repleads it and then immediately dismisses it without prejudice—neither the clerk nor the court could enter default judgment against UPS as to Count One until after that identical claim is adjudicated as to Robinson (even if that adjudication is in some other court), because that adjudication might establish that even if Robinson is a “motor carrier” or “freight forwarder” as repleaded, the claim fails for some other reason that also necessarily defeats the common claim against UPS. Accordingly, as Count One as to Robinson has not yet been finally adjudicated, Gargoyle’s motion for entry of default judgment must be denied without prejudice as to that count.

2.
Count Four of Gargoyle’s complaint asserts a state law tort claim alleging that the negligence of “Defendants,” including UPS and Robinson, caused damage to Gargoyle’s stone during shipment from Florida to Idaho. See ECF 1, ¶¶ 30–32. The court previously ruled that the Carmack Amendment preempts state law tort claims against “motor carriers,” “freight forwarders,” and “brokers,”4 and accordingly dismissed Count Four as to Robinson with prejudice. See ECF 29, at 32–34.

Because Robinson and UPS are similarly situated as to Count Four—both are alleged to be either “motor carriers” or “freight forwarders”—and because the court has already held that the Carmack Amendment preempts the state law tort claims against Robinson if it is a “motor carrier” or “freight forwarder,” neither the Clerk nor the court can enter default judgment against UPS as to Count Four. Accordingly, the court denies with prejudice Gargoyle’s motion for entry of default judgment against UPS as to Count Four.

B.
Putting aside its evidentiary deficiencies (discussed in Part C below), Gargoyle’s motion is not properly brought under Rule 55(b)(1), because the motion’s general claim for damages is not for “a sum certain or a sum that can be made certain by computation.” Fed. R. Civ. P. 55(b)(1); see Wright & Miller, 10A Federal Practice & Procedure—Civil § 2683 (4th ed. 2021) (noting that although “[t]his requirement obviously is met when the damages claimed are for a liquidated amount,” it “is not met, however, when there is only a generalized statement of the amount due in plaintiff’s complaint”). “In the vast majority of cases, a judicial determination is necessary to decide the extent of injury or the valuation of the plaintiff’s loss.” 10 Moore’s Federal Practice—Civil § 55.20 (2021).

*5 Similarly, Gargoyle’s claim for attorney’s fees is not a sum certain for Rule 55(b)(1) purposes. See Branded Online Inc. v. Holden LLC, No. SA CV 15-0390-DOC (DFMx), 2016 WL 8849024, at *1 (C.D. Cal. Jan. 8, 2016) (“[A] calculation of reasonable attorneys’ fees is not a sum certain calculation”) (quoting Phillips 66 v. Grainer, No. 1:13-cv-1890-LJO-BAM, 2015 WL 3797396, at *2 (E.D. Cal. June 18, 2015)).

C.
Because Gargoyle’s motion is not eligible for consideration by the Clerk under Rule 55(b)(1), it must be considered by the court under Rule 55(b)(2). When a plaintiff seeks entry of default judgment under Rule 55(b)(2), “the Court must determine whether the allegations of a plaintiff’s complaint establish his or her liability.” UN4 Productions., Inc. v. Primozich, 372 F. Supp. 3d 1129, 1133 (W.D. Wash. 2019) (citing Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986)). “The court must accept all well-pled allegations of the complaint as established fact, except allegations related to the amount of damages.” Id. (citing TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987)). “Where the alleged facts establish a defendant’s liability,” the court has discretion to enter default judgment. Id. (citing Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988)). “If plaintiff seeks an award of damages, it must provide the Court with evidence to establish the amount.” Id. (citing TeleVideo Sys., 826 F.2d at 917–18).

1.
Here, Gargoyle makes no attempt to explain or demonstrate how the factual allegations of its complaint, if taken as true, establish UPS’s liability under the Carmack Amendment.5 This failure alone warrants denial of Gargoyle’s motion as to its claim for damages under Count One.

Nor has Gargoyle made any effort to explain the legal basis for its claim for attorney’s fees under Count One. “[E]stablished federal common law disfavors the award of attorney’s fees in federal question cases absent an express congressional directive,” Resolution Trust Corp. ex rel. Home Sav. Bank, F.S.B. v. Gillam, 952 F.2d 1152, 1162 (9th Cir. 1991), so a party seeking such fees must cite the authority allowing for such a departure. Gargoyle has not done so here, which warrants denial of its motion as to its claim for attorney’s fees.

2.
Even if Gargoyle’s motion established UPS’s liability for Carmack Amendment damages and attorney’s fees under Count One, its motion would still fail because it failed to substantiate its damages and attorney’s fees claims with evidence. “The court must ensure that the amount of damages is reasonable and demonstrated by the plaintiff’s evidence.” Getty Images (US), Inc. v. Virtual Clinics, No. C13-0626JLR, 2014 WL 358412, at *2 (W.D. Wash. Jan. 31, 2014) (citing, inter alia, LG Elecs., Inc. v. Advance Creative Computer Corp., 212 F. Supp. 2d 1171, 1178 (N.D. Cal. 2002) (“[T]he evident policy of [Rule 55(b)] is that even a defaulting party is entitled to have its opponent produce some evidence to support an award of damages.”) (alterations in Getty)). The absence of evidence to support Gargoyle’s damages and attorney’s fees6 claims is fatal.

* * *
*6 The court therefore denies Gargoyle’s motion for entry of default judgment (so construed) against UPS as to Count Four with prejudice because the court has previously rejected that claim as to Robinson, which is similarly situated.

As to Count One, the court denies Gargoyle’s motion for entry of default judgment as to UPS without prejudice to refiling upon final adjudication of Count One as to Robinson. The court so denies Gargoyle’s motion as to Count One without prejudice because (1) Gargoyle’s identical Carmack Amendment claim against Robinson in Count One has not been resolved on the merits; (2) even if that predicate requirement were satisfied, Gargoyle has failed to demonstrate UPS’s liability for damages and attorney’s fees under the Carmack Amendment; and (3) Gargoyle has failed to submit evidence substantiating its claims for damages and attorney’s fees under the Carmack Amendment.

Conclusion
Gargoyle must decide whether it wishes to pursue the default claim against UPS as to Count One now by giving up its claim against Robinson (by allowing the dismissal of Count One with prejudice as to Robinson to take effect on January 4, 2022) or whether it would prefer to prosecute its Count One claim against Robinson now and defer seeking a default judgment against UPS until after the litigation with Robinson is resolved. After its Carmack Amendment claim against Robinson in Count One is adjudicated on the merits, in this court or elsewhere, Gargoyle may also file a renewed motion for entry of default judgment against UPS as to the same claim.7

ORDER
For the reasons stated above, it is hereby ORDERED as follows:

1. The document titled “Stipulation for Dismissal Without Prejudice of CH Robinson Worldwide, Inc.” (ECF 30) is STRICKEN.

2. Not later than January 3, 2022, Gargoyle may file an amended complaint repleading Count One’s Carmack Amendment claim against Robinson. If Gargoyle fails to do so, Count One shall be deemed dismissed with prejudice insofar as it relates to Robinson.

3. The court construes the document filed by Gargoyle and titled “Memorandum of Costs and Fees” (ECF 31) as a motion for entry of default judgment against Defendant UPS, and that motion is DENIED WITHOUT PREJUDICE as to Count One of Gargoyle’s complaint, and DENIED WITH PREJUDICE as to Count Four.

Addendum
(Proposed judgment submitted by Gargoyle)
JAMES G. REID (ISB #1372)

JENNIFER REID MAHONEY (ISB #5207)

J. REID & ASSOCIATES

1211 W. Myrtle St., Suite 350

Boise, Idaho 83702

Telephone: (208) 342-4591

Facsimile: (208) 342-4657

jreid@reidlawboise.com

jmahoney@reidlawboise.com

Attorneys for Plaintiff

[PROPOSED] JUDGMENT
JUDGMENT is entered as follows:

1. Defendant OPUSTONE, LLC, dba OPUSTONE STONE TILE CONCEPTS is dismissed with prejudice.

2. Defendant CH ROBINSON WORLDWIDE, INC. is dismissed without prejudice.

3. Judgment is entered against Defendant UPS GROUND FREIGHT, INC., dba UPS FREIGHT in the amount of $75,829.77.

DATED this _____ day of December, 2021.

[PROPOSED JUDGMENT, NOT SIGNED]

M. Miller Baker, Judge

All Citations
Slip Copy, 2021 WL 5999133

Footnotes

8
Judge of the United States Court of International Trade, sitting by designation.

1
The court has modified the document by adding the word “Proposed” to the document title and the words “Proposed Judgment, Not Signed” to the signature block.

2
The court acknowledges that Gargoyle could nevertheless replead Count One by the extended deadline and then immediately thereafter voluntarily dismiss that claim without prejudice under Rule 41(a)(1). That would be permissible because the repleaded claim would then—and only then—be extant. So doing, however, would preclude entry of a default judgment against UPS—which Gargoyle evidently seeks—for the reasons explained below.

3
In addition to ensuring that the requirements of either Rule 55(b)(1) or (2) are satisfied, before entering a default judgment a district court in the Ninth Circuit must also determine that it has both subject-matter jurisdiction and personal jurisdiction over the defaulting party. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (“When entry of judgment is sought against a party who has failed to plead or otherwise defend, a district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties.”). The court has previously determined that it has federal question subject-matter jurisdiction over this action based on Gargoyle’s Carmack Amendment claims. See ECF 29, at 6. As to personal jurisdiction over UPS, Gargoyle’s claim against it arises out of a contract between UPS and Robinson whereby the former agreed to ship cargo from Opustone in Miami to Gargoyle in Idaho. See ECF 19-2, ¶7 (declaration of Chris Ugarte, in-house counsel at Robinson). For essentially the same reasons that the court concluded it had personal jurisdiction over Opustone, see ECF 29, at 14–19, the court concludes that it similarly has personal jurisdiction over UPS. The company purposely availed itself of the privilege of doing business in Idaho by contracting to ship cargo there, Gargoyle’s claim arises out of that contact with Idaho, and the exercise of personal jurisdiction over UPS, an interstate shipper, is reasonable here. Thus, the court has jurisdiction to enter a default judgment against UPS.

4
Robinson contends that it is a “broker” for Carmack Amendment purposes.

5
Gargoyle’s cryptic and conclusory complaint similarly makes no effort to explain why UPS is liable under the Carmack Amendment even if the factual allegations of the complaint are taken as true.

6
To justify its attorney’s fees claim for $15,000, Gargoyle must supply evidence such as counsel’s invoices showing the hours worked, the hourly rate billed to the client, and the reasonableness of the rates charged. Cf. Exxon Mobil Corp. v. Future Group LLC, No. 1:12-cv-456 AWI DLB, 2012 WL 3156798, at *2 (E.D. Cal. Aug. 1, 2012) (finding declaration of counsel listing attorneys who worked on case, giving total sum of fees, and stating that it was the firm’s customary fee and a reasonable amount, to be insufficient to satisfy party’s burden of producing evidence, and listing examples of evidence needed) (citing, inter alia, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

7
But as discussed above, if Robinson defeats Gargoyle’s claim on the merits for reasons that also apply to Gargoyle’s claim against UPS, that will bar entry of default judgment as to UPS.

2021 IL 126730
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Supreme Court of Illinois.
Clifton ARMSTEAD, Appellant,
v.
NATIONAL FREIGHT, INC., et al., Appellees.
(Docket No. 126730)
|
Opinion filed December 16, 2021.

OPINION
JUSTICE OVERSTREET delivered the judgment of the court, with opinion.
*1 ¶ 1 The instant action arises from a March 6, 2015, vehicular collision at the entrance to a truck terminal located in Minooka, Illinois. Plaintiff, Clifton Armstead, in the course of his employment as a semitruck driver with Pennsylvania-based Manfredi Mushroom Companies, Inc. (Manfredi Mushroom), was allegedly struck and injured by the semitruck operated by defendant, Derrick Roberts, in the course of Roberts’s employment with defendant, National Freight, Inc., doing business as NFI Industries, Inc. (NFI). As a result of the collision, plaintiff filed in Pennsylvania a workers’ compensation claim against Manfredi Mushroom, which led to the execution of a “Compromise and Release Agreement by Stipulation” (Agreement) settling the claim. Plaintiff also filed the instant claim against defendants in the Grundy County circuit court.

¶ 2 Thereafter, in the Grundy County circuit court, defendants filed a “Motion for Partial Summary Judgment or Summary Determination of a Major Issue,” which the circuit court granted. The circuit court determined that the Agreement included a judicial admission that prohibited plaintiff from claiming injuries other than a right knee strain. The circuit court entered a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just reason to delay enforcement or appeal of its order. Plaintiff appealed, and on alternative, collateral-estoppel grounds, the appellate court affirmed the circuit court’s order granting defendants’ motion. 2020 IL App (3d) 170777, ¶ 19, 447 Ill.Dec. 428, 174 N.E.3d 119. For the following reasons, we vacate the appellate court’s order and remand the cause to the circuit court for dismissal.

¶ 3 I. BACKGROUND
¶ 4 A. The Pennsylvania Workers’ Compensation Action
¶ 5 On March 31, 2015, plaintiff filed with the Pennsylvania Department of Labor and Industry Workers’ Compensation Office of Adjudication (Pennsylvania Office of Adjudication) a workers’ compensation claim against Manfredi Mushroom, seeking compensatory damages for the injuries he sustained in the March 6, 2015, semitruck collision, which occurred in the course of his employment. On November 9, 2016, the Pennsylvania Office of Adjudication entered an order adjudicating plaintiff’s claims, incorporating the Agreement signed by plaintiff.

¶ 6 The Agreement stated, in relevant part, as follows:
“State the precise nature of [plaintiff’s] injury and whether the disability is total or partial.
Right knee strain. The parties agree that [plaintiff] did not sustain any other injury or medical condition as a result of his 3/06/2015 work injury.”
The “Conclusions of Law” section of the Agreement further stated as follows:
“[T]he Agreement as referenced of record is appropriately approved as binding only on the signing [p]arties, and limited to their respective rights and obligations under the [Pennsylvania Workers’ Compensation] Act. This [d]ecision is entered without adoption or litigated determination on the merits of the matters agreed upon, and is not to alter rights or obligations of any third party not a signatory to the Agreement, including any health insurance company or governmental agency.”

¶ 7 B. The Instant Action
*2 ¶ 8 On May 5, 2016, plaintiff filed in the Grundy County circuit court a two-count complaint alleging negligence against defendants. In count I, plaintiff alleged that on March 6, 2015, NFI, through its employee Roberts, breached its duty to exercise reasonable care when Roberts negligently operated a tractor-trailer, causing the collision and plaintiff’s injuries. In count II, plaintiff asserted the same negligence allegations against Roberts individually. Plaintiff complained of and sought damages for back, shoulder, and knee injuries resulting from the collision.

¶ 9 On March 13, 2017, defendants filed the “Motion for Partial Summary Judgment or Summary Determination of a Major Issue.” In their motion, defendants noted that the Pennsylvania order adjudicating plaintiff’s workers’ compensation claim had incorporated the Agreement, which stated that plaintiff had sustained only a right knee strain as a result of the collision. Defendants contended that the doctrine of collateral estoppel barred plaintiff from asserting that he incurred additional injuries beyond a right knee strain, as adjudicated and determined pursuant to his workers’ compensation claim. Defendants argued that, pursuant to the doctrine of collateral estoppel, they were entitled to judgment as a matter of law regarding the nature and extent of the injury plaintiff sustained in the collision. Defendants also argued that plaintiff’s admission in the Agreement amounted to a judicial admission that barred plaintiff from contending that he sustained injuries other than a right knee strain in the collision.

¶ 10 On April 24, 2017, plaintiff submitted his response to defendants’ motion. In plaintiff’s response, he alleged that as a result of the collision, he sustained injuries to his knee, lower back, and shoulder. Plaintiff argued that he executed the Agreement without litigating the matter and without having incentive to litigate the matter. Plaintiff cited the “Conclusions of Law” language in the Agreement, stating that the Agreement was “binding only on the signing [p]arties, and limited to their respective rights and obligations under” Pennsylvania law and entered “without adoption or litigated determination on the merits of the matters agreed upon, and is not to alter rights or obligations of any third party not a signatory to the Agreement.” Plaintiff argued that the Agreement could only be viewed through the lens of Pennsylvania workers’ compensation law, only pertained to the Pennsylvania workers’ compensation claim, and did not bar recovery against defendants for injuries beyond his right knee strain.

¶ 11 On June 14, 2017, the circuit court granted defendants’ motion. The circuit court held that the Agreement’s statement regarding plaintiff’s right knee strain constituted a judicial admission that prohibited plaintiff from claiming additional injuries. The circuit court rejected defendants’ collateral estoppel argument as a basis to grant the motion. The circuit court found no just reason to delay enforcement or appeal of the order. Ill. S. Ct. 304(a) (eff. Mar. 8, 2016).

¶ 12 On July 13, 2017, plaintiff filed a motion to reconsider the circuit court’s order. Plaintiff argued that on May 16, 2016, prior to his submission of the November 9, 2016, Agreement, he testified at a deposition that he injured his back, shoulder, and knee. Plaintiff argued that this deposition testimony from the Pennsylvania workers’ compensation case amounted to new evidence that had not yet been discovered, was more akin to a judicial admission than the content of the unlitigated Agreement, and justified the circuit court’s granting of his motion to reconsider. On October 18, 2017, the circuit court denied the motion to reconsider. The circuit court again found no just reason to delay enforcement or appeal of the ruling. Id.

*3 ¶ 13 On November 14, 2017, plaintiff filed a notice of appeal. However, on November 29, 2017, plaintiff filed in the circuit court a motion for voluntary dismissal without prejudice. In this motion, plaintiff asserted that the June 14, 2017, and October 18, 2017, orders “dismissed any potential claims for injuries” other than a right knee strain. Plaintiff moved to voluntarily dismiss, with leave to refile, “the remnant of this [c]ause concerning any claims for injuries concerning ‘right knee strain.’ ” On December 7, 2017, the circuit court, stating that it had “dismissed any potential claims for injuries aside from [a] ‘right knee strain’ pursuant to [d]efendants’ Partial Motion for Summary Judgment,” dismissed the cause “without prejudice and with leave to re-file.”

¶ 14 On January 3, 2018, plaintiff filed a second notice of appeal, and on January 25, 2018, the Appellate Court, Third District, consolidated the appeals. On appeal, plaintiff argued that the circuit court improperly characterized his statement from the separate-but-related action as a judicial admission. Pursuant to a petition for rehearing, the appellate court affirmed the circuit court’s order but on a different basis. 2020 IL App (3d) 170777, ¶ 19, 447 Ill.Dec. 428, 174 N.E.3d 119. The appellate court held that plaintiff’s contentions of additional injury were barred pursuant to the doctrine of collateral estoppel. Id. ¶ 21.

¶ 15 Finding the requirements of collateral estoppel met, the appellate court concluded that plaintiff was estopped from seeking compensation for any injury beyond the right knee strain referenced in the Agreement. Id. ¶ 32. The appellate court further found no unfairness in barring plaintiff from complaining of additional injuries because he had the opportunity to pursue those contentions during the Pennsylvania workers’ compensation proceedings. Id. ¶ 33. Having resolved the appeal on the basis of collateral estoppel, the appellate court did not reach defendants’ alternative argument based on judicial estoppel. Id. ¶ 34 n.2.

¶ 16 On March 24, 2021, this court allowed plaintiff’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Oct. 1, 2019)). This court granted the Illinois Trial Lawyers Association and the Workers’ Compensation Lawyers Association leave to submit amicus curiae briefs in support of plaintiff’s position. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). This court also granted the Illinois Association of Defense Trial Counsel leave to submit an amicus curiae brief in support of defendant NFI’s position.

¶ 17 II. ANALYSIS
¶ 18 Initially, we note that on May 6, 2021, defendants filed with this court a motion to dismiss the appeal as moot. In the motion, defendants argued that, after the circuit court granted their motion for partial summary judgment, the scope of plaintiff’s damages for his negligence cause of action was limited to a knee strain injury. Defendants argued that, because plaintiff voluntarily dismissed his cause of action in the circuit court on December 7, 2017, and did not refile his cause of action by December 7, 2018, pursuant to section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 2016) (allowing plaintiff to commence action within one year of voluntary dismissal or within remaining period of limitation)), the statute of limitations had expired. See id. § 13-202 (two-year period of limitation for commencing personal injury action). Defendants argued that as a consequence our decision would be advisory and, thus, the appeal should be dismissed as moot.

¶ 19 We took defendants’ motion with this case, and we hereby deny it. However, upon review of the record, we have determined that this court lacks jurisdiction, as did the appellate court, to address the issue in this appeal. See In re J.B., 204 Ill. 2d 382, 388, 273 Ill.Dec. 827, 789 N.E.2d 1259 (2003) (if not raised by the parties, reviewing courts have duty to raise at any time questions affecting court’s authority to hear a given controversy).

*4 ¶ 20 The Illinois Constitution confers on the appellate court jurisdiction to hear appeals from final judgments entered in the circuit court. See Ill. Const. 1970, art. VI, § 6 (providing that appeals “from final judgments of a Circuit Court are a matter of right to the Appellate Court”). The constitution further grants this court the right to “provide by rule for appeals to the Appellate Court from other than final judgments.” Id. “Accordingly, absent a supreme court rule, the appellate court is without jurisdiction to review judgments, orders, or decrees that are not final.” Blumenthal v. Brewer, 2016 IL 118781, ¶ 22, 410 Ill.Dec. 289, 69 N.E.3d 834.

¶ 21 In this case, the circuit court’s order granting defendants’ motion was brought before the appellate court pursuant to Illinois Supreme Court Rule 304(a) (Mar. 8, 2016). Rule 304(a) provides:
“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” Id.

¶ 22 Although the circuit court in this case made the written finding required by Rule 304(a), that finding is not dispositive. See Blumenthal, 2016 IL 118781, ¶ 24, 410 Ill.Dec. 289, 69 N.E.3d 834. “By its terms, Rule 304(a) applies only to final judgments or orders.” Id. “The special finding contemplated by the rule will make a final order appealable, but it can have no effect on a nonfinal order.” Id. “If the order is in fact not final, inclusion of the special finding in the trial court’s order cannot confer appellate jurisdiction.” Id.

¶ 23 “[T]o be considered final and appealable for purposes of Rule 304(a), a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court only has to proceed with execution of the judgment.” Id. ¶ 25. Although the order need not dispose of all claims presented by the pleadings, “it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof.” Id.

¶ 24 Where an order disposes only of certain issues relating to the same basic claim, such a ruling is not subject to review under Rule 304(a). In re Marriage of Leopando, 96 Ill. 2d 114, 119-20, 70 Ill.Dec. 263, 449 N.E.2d 137 (1983). In The Carle Foundation v. Cunningham Township, 2017 IL 120427, ¶ 1, 417 Ill.Dec. 693, 89 N.E.3d 341, the plaintiff filed an action to establish that four of its properties were exempt from real estate taxation. The circuit court granted the plaintiff’s motion for summary judgment on count II of the fourth amended complaint, which sought a declaration that the plaintiff’s exemption claims were governed by section 15-86 of the Property Tax Code (35 ILCS 200/15-86 (West 2014) (establishing a charitable use exemption for hospitals)). Carle Foundation, 2017 IL 120427, ¶ 1, 417 Ill.Dec. 693, 89 N.E.3d 341. The circuit court entered a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) that there was no just reason to delay enforcement of or appeal from its decision. Carle Foundation, 2017 IL 120427, ¶ 1, 417 Ill.Dec. 693, 89 N.E.3d 341. The defendants appealed, and the appellate court reversed the circuit court’s judgment. Id. After petitions for leave to appeal were granted, this court vacated the appellate court’s decision on the grounds that it lacked appellate jurisdiction under Rule 304(a) and remanded the cause to the circuit court for further proceedings. Id.

*5 ¶ 25 In Carle Foundation, this court explained that, “[i]n construing and applying Rule 304(a), this court has drawn a clear distinction between judgments that dispose of ‘separate, unrelated claims,’ which are immediately appealable under Rule 304(a), and orders that dispose only of ‘separate issues relating to the same claim,’ which are not immediately appealable under Rule 304(a).” (Emphasis in original.) Id. ¶ 15 (quoting Leopando, 96 Ill. 2d at 119, 70 Ill.Dec. 263, 449 N.E.2d 137); see also In re Marriage of Best, 228 Ill. 2d 107, 114, 319 Ill.Dec. 815, 886 N.E.2d 939 (2008). This court clarified that “[t]he reason for this distinction is found in the policy considerations that inform Rule 304(a).” Carle Foundation, 2017 IL 120427, ¶ 15, 417 Ill.Dec. 693, 89 N.E.3d 341. These considerations include “ ‘discouraging piecemeal appeals in the absence of some compelling reason and *** removing the uncertainty as to the appealability of a judgment which was entered on less than all of the matters in controversy.’ ” Id. (quoting In re Marriage of Lentz, 79 Ill. 2d 400, 407, 38 Ill.Dec. 582, 403 N.E.2d 1036 (1980)); see also Leopando, 96 Ill. 2d at 119-20, 70 Ill.Dec. 263, 449 N.E.2d 137 (to interpret Rule 304(a) as allowing a party to file separate appeals from adverse judgments as to each issue involved in a dissolution proceeding would promote unnecessary piecemeal litigation arising out of the same proceeding).

¶ 26 This court in Carle Foundation concluded that the circuit court’s order resolved an issue, not a claim. Carle Foundation, 2017 IL 120427, ¶ 18, 417 Ill.Dec. 693, 89 N.E.3d 341. This court determined that rather than disposing of a claim that was separate and distinct from plaintiff’s exemption claims, the question posed in count II of the complaint was simply an issue that was ancillary to remaining claims pled in the complaint. Id. The court thus found that, because the order disposed only of certain issues relating to the same basic claims, the ruling was not subject to review under Rule 304(a) and the appellate court lacked jurisdiction to review it. Id.

¶ 27 Likewise, we must determine whether the circuit court’s order granting plaintiff’s “Motion for Partial Summary Judgment or Summary Determination of a Major Issue” disposed of a claim that was separate from and unrelated to the negligence claims pled in plaintiff’s complaint or whether it merely resolved an issue that was part of or ancillary to those claims. See id. We conclude that the circuit court’s order resolved an issue, not a claim.

¶ 28 The circuit court’s order granting defendants’ motion disposed of an issue, i.e., whether plaintiff’s statement in the Agreement amounted to a judicial admission that precluded him from later asserting injuries to his back and shoulder. The circuit court’s order did not dispose of plaintiff’s negligence claim against NFI in count I or plaintiff’s negligence claim against Roberts in count II of his complaint. Plaintiff’s negligence claims against defendants remained pending in the circuit court even after the circuit court entered its order limiting plaintiff to allegations involving only his knee strain injury. Because the circuit court’s order disposed only of a certain issue, i.e., whether plaintiff’s injury allegations were limited by a previous judicial admission, which related to the same basic negligence claims, its ruling was not subject to review under Rule 304(a). See id. (“ ‘[w]here an order disposes only of certain issues relating to the same basic claim, such a ruling is not subject to review under Rule 304(a)’ ” (quoting Blumenthal, 2016 IL 118781, ¶ 27, 410 Ill.Dec. 289, 69 N.E.3d 834)).

¶ 29 Instead, the circuit court’s order limiting plaintiff’s injury allegations pursuant to his prior judicial admission resolved an issue that was ancillary to plaintiff’s negligence claims. Accordingly, permitting this appeal would promote precisely the type of piecemeal appeals Rule 304(a) was designed to discourage. See Blumenthal, 2016 IL 118781, ¶ 27, 410 Ill.Dec. 289, 69 N.E.3d 834. Thus, the circuit court’s entry of a Rule 304(a) finding in this case was improper, and the appellate court therefore lacked jurisdiction to review the circuit court’s order.

¶ 30 The record on appeal and plaintiff’s argument in his reply brief reveal that, subsequent to the circuit court’s improper Rule 304(a) finding, plaintiff dismissed his action in the circuit court, where jurisdiction remained due to the improper Rule 304(a) finding. After dismissal, plaintiff failed to refile the action within one year pursuant to section 13-217 of the Code of Civil Procedure or within the statute of limitations period; therefore, plaintiff’s action remains dismissed. Accordingly, we vacate the appellate court’s decision in its entirety and remand this cause to the circuit court for dismissal.

¶ 31 III. CONCLUSION
*6 ¶ 32 For the foregoing reasons, we hereby vacate the judgment of the appellate court, and we remand this cause to the circuit court for dismissal.

¶ 33 Appellate court judgment vacated.

¶ 34 Cause remanded for dismissal.

Justices Garman, Theis, and Michael J. Burke concurred in the judgment and opinion.
Chief Justice Anne M. Burke concurred in part and dissented in part, with opinion, joined by Justice Neville.
Justice Carter took no part in the decision.

¶ 35 CHIEF JUSTICE ANNE M. BURKE, concurring in part and dissenting in part:

¶ 36 I agree with the majority that plaintiff’s appeal under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) was improper and, as a result, the appellate court lacked jurisdiction and its judgment must be vacated. I disagree, however, with the majority’s decision to remand this cause to the circuit court for dismissal. I therefore concur in part and dissent in part.

¶ 37 Plaintiff Clifton Armstead was involved in a motor vehicle accident in which the truck he was driving for his employer was struck by a vehicle owned by National Freight, Inc., doing business as NFI Industries, Inc., and driven by their employee, Derrick Roberts. Plaintiff suffered knee and back injuries and underwent multiple surgeries.

¶ 38 Plaintiff filed a workers’ compensation claim in Pennsylvania, and he and his employer entered into a settlement agreement for $110,000. In the agreement plaintiff’s injury was listed as “knee strain.” The settlement agreement also said that appellant had not sustained any other injuries. The order approving the agreement provided that it was “approved as binding only on the signing Parties and limited to their respective rights and obligations under the Act.” The order also stated it was “entered without adoption or litigated determination on the merits of the matters agreed upon” and was “not to alter rights or obligations of any third party not a signatory to the Agreement.”

¶ 39 Plaintiff thereafter filed a two-count complaint in Illinois seeking compensation for injuries to his back, shoulder, and knee. Plaintiff’s cause of action sounded in negligence. Count I of plaintiff’s complaint set forth a claim of negligence against NFI Industries, Inc., and count II set forth a claim of negligence against Roberts.

¶ 40 Defendants moved for partial summary judgment, arguing that (1) the language in the Pennsylvania agreement describing the injury constituted a judicial admission that limited appellee’s injuries to knee strain or (2) based on collateral estopped principles, appellant was barred from seeking damages for any injury other than knee strain. The circuit court granted defendants’ motion, finding the statement of injury in the release agreement in the Pennsylvania workers’ compensation case was a judicial admission that appellant’s only injury was “knee strain.” The circuit court rejected the collateral estoppel argument.

¶ 41 Rule 304(a) language was then added to the circuit court’s order, and plaintiff appealed. Two weeks later, appellant moved—in the circuit court—to dismiss his remaining “claim” for right knee strain, which the circuit court granted.

¶ 42 The appellate court did not consider its own jurisdiction. Initially it reversed the circuit court, but it later affirmed on rehearing, holding that collateral estoppel applied to bar plaintiff from claiming damages beyond “knee strain.” 2020 IL App (3d) 170777, 447 Ill.Dec. 428, 174 N.E.3d 119.

*7 ¶ 43 In this court, the majority correctly holds that plaintiff’s Rule 304(a) appeal was improper. As the majority explains, the circuit court’s decision regarding the preclusive effect of the Pennsylvania workers’ compensation award merely resolved an issue that related to plaintiff’s personal injury claims. Since the circuit court’s ruling was not a final judgment resolving a claim, it was not subject to appeal, and the issuance of the Rule 304(a) finding had no legal effect. Supra ¶¶ 28-29.

¶ 44 This same reasoning applies with equal force to plaintiff’s motion to dismiss. As noted, while this matter was pending in the appellate court, plaintiff filed a motion in the circuit court to voluntarily dismiss a “claim” for right knee strain. Supra ¶ 13. However, as this court has made clear, there is no such thing as a “claim” for knee strain. Whether plaintiff can recover for a particular bodily injury is an issue related to his claims of negligence; it is not itself a claim. Thus, just as plaintiff’s appeal was improper, so too was the motion requesting dismissal of a “claim” for knee strain. The motion asked for something that simply did not exist. The motion was a legal nullity, and neither it nor the circuit court’s order granting the motion should be given any effect.

¶ 45 The majority does not acknowledge the legal deficiency of plaintiff’s motion. Instead, the majority rewrites it, stating at the conclusion of its opinion that “plaintiff dismissed his action in the circuit court.” (Emphasis added.) Supra ¶ 30. Based on this mischaracterization of plaintiff’s motion, the majority concludes that this cause must be remanded to the circuit court for dismissal. This is clearly incorrect. Plaintiff at no time sought dismissal of his entire negligence cause of action. Indeed, he could not possibly have intended such a thing, given that he, as well as the defendants and the circuit court, all assumed that part of the case was on appeal in the appellate court. The majority has rewritten plaintiff’s motion and turned it into something plaintiff never intended. There is no justification for taking this step.

¶ 46 Moreover, if, as the majority states, plaintiff’s cause of action was dismissed in its entirety, then this would necessarily mean that this appeal is moot, since plaintiff never moved to refile. Yet the majority holds that the appeal is not moot. Supra ¶¶ 18-19. No explanation is given for this inconsistency.

¶ 47 The majority’s rewriting of plaintiff’s motion is unwarranted and fundamentally unfair. The parties and the circuit court were operating under the false assumption that there were separate “claims” for different bodily injuries. This error infected the entire proceedings. Now that the error has been corrected by this court, the appropriate thing to do is to vacate the appellate court’s judgment as well as the circuit court’s voluntary dismissal order and return this case to the circuit court. This would put the parties back to square one and leave intact the circuit court’s determination regarding the preclusive effect of the Pennsylvania workers’ compensation award.

¶ 48 For these reasons, I concur in part and dissent in part.

¶ 49 JUSTICE NEVILLE joins in this partial concurrence, partial dissent.
¶ 50 JUSTICE CARTER took no part in the consideration or decision of this case.
All Citations
— N.E.3d —-, 2021 IL 126730, 2021 WL 5937731