Payne Ex Rel. Estate of Calzada v. Brake

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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  No. 04-2348

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;



2 PAYNE v. BRAKE

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.



PAYNE v. BRAKE 3

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  No. 04-2356

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;



4 PAYNE v. BRAKE

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.



PAYNE v. BRAKE 5

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  No. 04-2357

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;



6 PAYNE v. BRAKE

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.



PAYNE v. BRAKE 7

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  No. 04-2424

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;



8 PAYNE v. BRAKE

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.



Appeals from the United States District Court

for the Western District of Virginia, at Charlottesville.

Norman K. Moon, District Judge.

(CA-02-75-3; CA-02-72-3; CA-02-78-3)

Argued: November 30, 2005

Decided: March 1, 2006

Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.

PAYNE v. BRAKE 9

Affirmed by published opinion. Judge Traxler wrote the opinion, in

which Judge Niemeyer and Judge Motz joined.

COUNSEL

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, Char-

lottesville, Virginia, for Appellants/Cross-Appellees. Deborah C.

Wyatt, WYATT & ARMSTRONG, P.L.C., Charlottesville, Virginia,

for Appellee/Cross-Appellant.

OPINION

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 jurisdic-

tion 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,

10 PAYNE v. BRAKE

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 Second Action, the defendants in the still-

active First Action asked the state court to dismiss the claims with

prejudice for failure to serve process. They also objected to the entry

of nonsuit. Recognizing her previous error, Payne then requested a

nonsuit order. The state court entered the order, but did so nunc pro

tunc, as though it had been entered on the day Payne thought she

requested it, October 22, 2001. The Virginia Supreme Court affirmed,

but ruled that the nonsuit order should not have been granted nunc pro

tunc. See Brake v. Payne, 597 S.E.2d 59, 64 (Va. 2004). Thus, on

remand, the state court entered an order of nonsuit on July 1, 2004,

effectively reviving the statute of limitations for six more months.

Payne therefore had until the end of 2004 to re-file her claims and

remain within the limitations period.

This left the Second Action in a sort of procedural limbo. Since the

date of the nonsuit had been moved from October 22, 2001, to July

1, 2004, the Second Action was technically filed after the limitations

period had ended, but before it was revived. Under these circum-

stances, the district court felt compelled to dismiss the case on statute

of limitations grounds. However, the district court was well aware

that the Virginia Supreme Court had effectively revived the limita-

tions period. The district court therefore found itself in the peculiar

position of dismissing a case as time-barred but realizing that a new,

later action would not be time-barred. As a result, the district court

PAYNE v. BRAKE 11

dismissed the case "without prejudice" pursuant to Rule 41(b) of the

Federal Rules of Civil Procedure.

Defendants appeal, claiming that the district court’s Rule 41(b) dis-

missal should have been with prejudice. Payne cross-appeals, arguing

that the district court lacked jurisdiction because of an improper

removal and that it abused its discretion by setting aside entries of

default against several Defendants.

We review de novo any legal interpretation of the scope of Rule 41

of the Federal Rules of Civil Procedure. See Marex Titanic, Inc. v.

The Wrecked & Abandoned Vessel, 2 F.3d 544, 545-46 (4th Cir.

1993). However, we consider decisions that fall within that scope for

an abuse of discretion. See Ballard v. Carlson, 882 F.2d 93, 95 (4th

Cir. 1989). For questions concerning removal to federal court, our

standard of review is de novo. See Lontz v. Tharp, 413 F.3d 435, 439

(4th Cir. 2005). Finally, we review for an abuse of discretion a district

court’s decision to set aside an entry of default. See Consolidated

Masonry & Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d

249, 251 (4th Cir. 1967).

II.

We first address Payne’s claim of improper removal. The removal

statute requires a "defendant or defendants desiring to remove any

civil action or criminal prosecution from a State court [to] file in the

district court of the United States for the district and division within

which such action is pending a notice of removal." 28 U.S.C.A.

§ 1446(a) (West 1994) (emphasis added). Payne argues that the dis-

trict court lacked subject matter jurisdiction because not all defen-

dants joined in the removal to federal court. We disagree.

Failure of all defendants to join in the removal petition does not

implicate the court’s subject matter jurisdiction. Rather, it is merely

an error in the removal process. As a result, a plaintiff who fails to

make a timely objection waives the objection. See 28 U.S.C.A.

§ 1447(c) (West Supp. 2005) (explaining that, after removal, any

"motion to remand the case on the basis of any defect other than lack

of subject matter jurisdiction must be made within 30 days"); Nolan

v. Prime Tanning Co., 871 F.2d 76, 78 (8th Cir. 1989) ("Procedural

12 PAYNE v. BRAKE

removal requirements, such as [failure of all defendants to join in

removal], are not jurisdictional, and thus a party may waive the right

to object to removal on these grounds.") (citing Loftin v. Rush, 767

F.2d 800, 805 (11th Cir. 1985); Leininger v. Leininger, 705 F.2d 727,

729 (5th Cir. 1983); and Fristoe v. Reynolds Metals Co., 615 F.2d

1209, 1212 (9th Cir. 1980)).

There is no dispute that the district court otherwise had jurisdiction

because of the violations of federal law Payne pled in her motion for

judgment. There is also no dispute that Payne failed to move for

remand within 30 days of the notice of removal. As such, Payne

waived her right to object to the removal on the grounds that all

defendants did not join in removal. The district court properly

retained jurisdiction over the Second Action.

III.

We now turn to Defendants’ argument that the district court should

have dismissed Payne’s claims with prejudice. Rule 41(b) states that

Unless the court in its order for dismissal otherwise speci-

fies, a dismissal under this subdivision and any dismissal not

provided for in this rule, other than a dismissal for lack of

jurisdiction, for improper venue, or for failure to join a party

under Rule 19, operates as an adjudication upon the merits.

Fed. R. Civ. P. 41(b) (emphasis added). The rule gives the district

court discretion to "otherwise specif[y]" that a dismissal is not "an

adjudication upon the merits," i.e., that it is a dismissal without preju-

dice. Id. We made this clear in Shoup v. Bell & Howell Co., 872 F.2d

1178 (4th Cir. 1989), when we ruled that a dismissal based upon a

ground not enumerated in the rule was an adjudication on the merits

because the district court "did not otherwise specify the dismissal to

be ‘without prejudice,’ and the [plaintiffs] failed to move the court . . .

to specify that the judgment was ‘without prejudice.’" Id. at 1180; see

also Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503

(2001) ("Rule 41(b) sets forth nothing more than a default rule for

determining the import of a dismissal (a dismissal is ‘upon the mer-

its,’ with the three stated exceptions, unless the court ‘otherwise spec-

ifies’).").

PAYNE v. BRAKE 13

Here, the district court’s order explicitly stated that the case was to

be dismissed without prejudice and provided clear reasons explaining

why this approach was appropriate. Namely, the district court was

understandably concerned that a dismissal with prejudice might some-

how deny on statute of limitations grounds any claim Payne might re-

file, despite the Virginia Supreme Court’s ruling giving Payne an

additional six months to re-file. Rule 41(b) gave the district court this

discretion, and, under these circumstances, we cannot say that the dis-

trict court abused it.

IV.

Finally, we address Payne’s claim that the district court abused its

discretion in setting aside the entries of default entered against various

Defendants. Rule 55 of the Federal Rules of Civil Procedure provides

that a court may, "[f]or good cause shown," set aside an entry of

default. Fed. R. Civ. P. 55(c). "The disposition of motions made under

Rule[ ] 55(c) . . . is a matter which lies largely within the discretion

of the trial judge and his action is not lightly to be disturbed by an

appellate court." Consolidated Masonry, 383 F.2d at 251.

When deciding whether to set aside an entry of default, a district

court should consider whether the moving party has a meritorious

defense, whether it acts with reasonable promptness, the personal

responsibility of the defaulting party, the prejudice to the party,

whether there is a history of dilatory action, and the availability of

sanctions less drastic. See id.; see also Lolatchy v. Arthur Murray,

Inc., 816 F.2d 951, 953 (4th Cir. 1987). The district court took these

considerations into account when ruling to set aside the entries of

default and, on this record, we cannot say that it abused its discretion.

V.

Because Payne waived any right she may have had to insist that all

defendants join in the removal, and because the district court did not

abuse its discretion by making its dismissal without prejudice or by

setting aside the entries of default, we affirm.

AFFIRMED