Reply Brief — Gary Waetzig, Petitioner v. Halliburton Energy Services, Inc.

Supreme Court briefJun 24, 2024

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No. 23-971

IN THE

Supreme Court of the United States

GARY WAETZIG,

Petitioner,

HALLIBURTON ENERGY SERVICES, INC.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

REPLY BRIEF

SPENCER J. KONTNIK

AUSTIN M. COHEN

KONTNIK | COHEN, LLC

201 Steele Street

Suite 210

Denver, CO 80206

(720) 449-8448

June 24, 2024

Counsel for Petitioner

VINCENT LEVY

Counsel of Record

KEVIN D. BENISH

JACK MILLMAN

ADITI SHAH

BYRON J. HAZZARD

HOLWELL SHUSTER

& GOLDBERG LLP

425 Lexington Avenue

New York, NY 10017

(646) 837-5120

vlevy@hsgllp.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

REPLY IN SUPPORT OF PETITION FOR A

WRIT OF CERTIORARI .............................................1

The Question Presented Divides The

Courts Of Appeals .........................................1

II.

The Decision Below Is Wrong .......................4

III.

The Question Presented Is Important

And Respondent Concedes There Are

No Vehicle Problems .....................................8

CONCLUSION ..........................................................12

TABLE OF AUTHORITIES

Cases

Pages

Becker v. Montgomery,

532 U.S. 757 (2001) ................................................11

Brody v. Bruner,

2024 WL 729654 (D. Colo. Feb. 22, 2024) ...............9

Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427 (2019) ..............................................4–5

Gillespie v. U.S. Steel Corp.,

379 U.S. 148 (1964) ..................................................2

Halderman v. Pennhurst State Sch. & Hosp.,

901 F.2d 311 (3d Cir. 1990) .....................................3

Harrison v. PPG Indus., Inc.,

446 U.S. 578 (1980) ..................................................6

Hormel v. Helvering,

312 U.S. 552 (1941) ................................................11

In re Hunter,

66 F.3d 1002 (9th Cir. 1995) ....................................3

McIntosh v. United States,

601 U.S. 330 (2024) ................................................11

Moore v. Hudson,

2024 WL 1051176 (D. Kan. Mar. 11, 2024) .............9

Motorola Credit Corp. v. Uzan,

561 F.3d 123 (2d Cir. 2009) ...................................10

iii

Nelson v. Napolitano,

657 F.3d 586 (7th Cir. 2011) ....................................3

Pavelic & LeFlore v. Marvel Ent. Grp.,

493 U.S. 120 (1989) ..................................................4

Redman v. United States,

2023 WL 8519210 (3d Cir. Dec. 8, 2023) .................3

Reid v. Angelone,

369 F.3d 363 (4th Cir.2004) .....................................5

Rismed Oncology Systems, Inc. v. Baron,

297 F.R.D. 637 (N.D. Ala. 2014) ..............................9

Stubblefield v. Windsor Capital Group,

74 F.3d 990 (10th Cir. 1996) ....................................6

Thomas v. Shulkin,

2019 WL 13293258 (S.D. Miss. Mar. 7, 2019) .......10

United States v. Powell,

423 U.S. 87 (1975) ....................................................6

United States v. Roy,

855 F.3d 1133 (11th Cir. 2017) ................................8

WBB Construction, Inc. v. Bellcomb, Inc.,

2016 WL 1389760 (D. Minn. Apr. 7, 2016)..............6

West v. Wells Fargo Bank, N.A.,

2023 WL 8261644 (D. Utah Nov. 29, 2023).............9

White v. National Football League,

756 F.3d 585 (8th Cir. 2014) ................................3, 6

Yates v. United States,

574 U.S. 528 (2015) ..................................................7

Yesh Music v. Lakewood Church,

727 F.3d 356 (2013) ................................ 1–2, 5, 9–10

Rules

Fed. R. Civ. P. Rule 41 ............................ 1–6, 8–10, 12

Fed. R. Civ. P. Rule 60 .......................................... 1–12

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

The Question Presented Divides The

Courts Of Appeals

Respondent cannot and does not seriously dispute

that the decision below implicates a divide among the

courts of appeal on whether a voluntary dismissal

without prejudice under Rule 41(a)(1)(i) is a “final

proceeding” that may be reopened via Rule 60(b). See

Pet. App. 15a (discussing Fifth Circuit’s conflicting

opinion in Yesh Music v. Lakewood Church, 727 F.3d

356 (2013) and acknowledging that the Fifth Circuit

“concluded that a voluntary dismissal without

prejudice is a final proceeding under Rule 60(b)”).

Instead, Respondent tries to minimize the holding of

Yesh Music and suggests the other courts of appeals’

similar approaches are not evidence of a divide.

Neither argument passes muster.

A. Despite contending that the opinion below was

correct, Respondent characterizes the Tenth Circuit’s

express rejection of the Fifth Circuit’s approach as

merely “tension” that “arguably conflicts” with the

Fifth Circuit’s decision. Opp. 12.

This disregards the Tenth Circuit’s extensive

analysis of Yesh Music, and the Tenth Circuit’s clear

decision to follow Judge Jolley’s dissent in Yesh Music.

See Pet. App. 16a (agreeing with Judge Jolly’s dissent

on the ground that a voluntary dismissal without

prejudice “was not final . . . and [] it was not a

proceeding”). This is not “tension.” The opinion below

expressly considers, and rejects, the contrary holding

of another court of appeals.

Petitioner also briefly asserts that the Tenth

Circuit’s rejection of the Fifth Circuit’s reasoning

should be disregarded because of the “highly unusual

circumstances” in Yesh Music, namely that the action

was voluntarily dismissed twice. Opp. 12 (citing 727

F.3d at 358). But that fact had no bearing on Yesh

Music’s ruling, which the Tenth Circuit later rejected,

that “finality” in the Rule 60(b) context requires a

“practical” construction. Yesh Music, 727 F.3d at 360

(quoting Gillespie v. U.S. Steel Corp., 379 U.S. 148

(1964)). That fact also did not affect the Fifth Circuit’s

holding that the term “‘proceeding’ does not

necessarily require any [judicial] action.” Ibid.

B. Respondent makes similar meritless attempts

to distinguish the holdings of the Third, Seventh,

Eighth, and Ninth Circuit decisions, all of which also

conflict with the decision below, by pointing to the

specific and different procedural postures of those

cases. What is clear is that these other cases all apply

Rule 60(b) in a pragmatic and flexible manner, in

sharp contrast to the Tenth Circuit’s rigid holding.

Thus, although the Tenth Circuit held below that

a voluntary dismissal under Rule 41(a)(1)(A)(i) cannot

be a “proceeding” because “no judicial officer was

involved in any way,” Pet. App. 18a, the Eighth

Circuit held that stipulated dismissals with prejudice

are “final judgments,” even though such dismissals

may occur “without any involvement by the court.”

White v. National Football League, 756 F.3d 585, 595

(8th Cir. 2014) (emphasis added). The Tenth Circuit’s

holding also contradicts established law in the Third

Circuit, which recognizes that “[a]ny time a district

[court] enters a judgment, even one dismissing a case

by stipulation of the parties, [it] retains, by virtue of

Rule 60(b), jurisdiction to entertain a later motion to

vacate the judgment on the grounds specified in the

rule.” Redman v. United States, 2023 WL 8519210, at

*2 (3d Cir. Dec. 8, 2023) (alterations in original)

(quoting Halderman v. Pennhurst State Sch. & Hosp.,

901 F.2d 311, 320 (3d Cir. 1990)).

The Tenth Circuit also found that a voluntary

dismissal without prejudice lacks “requisite finality”

because “[a]lthough the dismissal may have brought a

particular lawsuit to a close, the overarching dispute

between the parties has not been resolved.” Pet. App.

18a–19a. The Seventh Circuit considered and rejected

this exact point in Nelson v. Napolitano, 657 F.3d 586,

(7th Cir. 2011), finding that “[a] voluntary dismissal

pursuant to Rule 41(a)(1)(A)(i) . . . does not deprive a

district court of jurisdiction for all purposes,” before

concluding that the district court did not abuse its

discretion in finding that the Rule 60(b) factors were

not met. Id. at 589; see also In re Hunter, 66 F.3d 1002,

1004 (9th Cir. 1995) (“acknowledgment of satisfaction

of judgment” in bankruptcy is “functionally equivalent

to filing a voluntary dismissal,” and therefore counts

as a “judgment, order, or proceeding from which Rule

60(b) relief can be granted”).

The Tenth Circuit’s decision conflicts with

decisions of the Third, Fifth, Seventh, Eighth, and

Ninth Circuits, and creates a circuit split worthy of

this Court’s review.

II.

The Decision Below Is Wrong

Respondent’s next argument for why certiorari

should be denied jumps over this Court’s Rule 10 and

goes straight to the merits—arguing that the decision

below, rather than the Fifth Circuit’s decision, is

correct. Opp. 13–16. In doing so, Respondent doubles

down on its analytical and interpretive errors.

A. Respondent first argues that the Tenth Circuit

correctly determined that a Rule 41 dismissal is not a

“final proceeding” because it does not “involve, at a

minimum, a judicial determination with finality.”

Opp. at 14 (citation omitted). But the Rule does not

expressly impose such a requirement, and this Court

“give[s] Federal Rules of Civil Procedure their plain

meaning” and interprets a Rule in a manner similar

to “a statute.” Pavelic & LeFlore v. Marvel Ent. Grp.,

493 U.S. 120, 123 (1989). And Respondent’s

interpretation of “final proceeding” fails to adhere to

well-settled principles of statutory interpretation.

For instance, one “source that might shed light on

[a] statute’s ordinary meaning” would be “dictionary

definitions.” Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427, 435 (2019). These do not require a

judicial determination. As the opinion below notes,

“final proceeding,” per contemporary dictionaries,

means, inter alia, a “[d]efinitive,” “completed,” or

“conclusive” “application to a court of justice . . . for

aid in the enforcement of rights.” Pet. App. 9a

(alteration in original). But the Tenth Circuit admits

that neither the “general” definition nor the “more

particular” definition of “proceeding” in contemporary

dictionaries requires a “judicial determination.” See

ibid. Indeed, the “more particular” definition is

extremely broad, covering “any application to a court

of justice, however made, for aid in the enforcement of

rights, for relief, for redress of injuries, for damages,

or for any remedial object.” Ibid. Despite this, the

Tenth Circuit still imposed a judicial-determination

requirement.

It is unsurprising that the Fifth Circuit disagreed,

concluding that “a ‘proceeding’ does not necessarily

require any [judicial] action.” Yesh Music, 727 F.3d at

360. Consistent with dictionary definitions, the Fifth

Circuit held that “‘[t]he term ‘proceeding’ is

indeterminate,’ and may be used to describe the entire

course of a cause of action or any act or step taken in

the cause by either party.” Ibid. (alteration in original)

(quoting Reid v. Angelone, 369 F.3d 363, 368 (4th

Cir.2004)).

B. Moreover, a Rule 41 dismissal, with or without

prejudice, plainly is “final” in the ordinary sense of

that word, as it is “definitive” and “terminates” a

proceeding. The fact that it may be without prejudice

does not make the dismissal any less “final.” Unlike

an interlocutory decision or step, a Rule 41 dismissal

effectuates the dismissal of an action. The fact that a

party may be entitled to a “do over” by re-filing a new

(and different) action does not change the fact that a

Rule 41 dismissal makes what is done, done—the

hallmark of finality for purposes of Rule 60 relief.

The Tenth Circuit’s decision to the contrary rested

almost exclusively on a misplaced application of the

ejusdem generis canon, which holds that “where

general words follow an enumeration of specific items,

the general words are read as applying only to other

items akin to those specifically enumerated.”

Harrison v. PPG Indus., Inc., 446 U.S. 578, 588 (1980).

The first problem, however, is that “[a]s [this Court]

ha[s] often noted: ‘The rule of ejusdem generis, while

firmly established, is only an instrumentality for

ascertaining the correct meaning of words when there

is uncertainty.’” Ibid. (quoting United States v. Powell,

423 U.S. 87, 91 (1975)). In Harrison, this Court

“discern[ed] no uncertainty in the meaning of the

phrase, ‘any other final action.’” Ibid. Similarly here,

there is no uncertainty requiring application of the

ejusdem generis rule to conclude, as the Tenth Circuit

erroneously did, that a “final proceeding” must involve

a judicial determination in conformity with final

“judgment” and “order,” the terms preceding

“proceeding” in Rule 60.1

1 For instance, “an accepted offer of judgment under Rule 68, Fed.

R. Civ. P., [is] ‘executed by the parties without any involvement

by the court,’” WBB Construction, Inc. v. Bellcomb, Inc., 2016 WL

1389760, at *2 (D. Minn. Apr. 7, 2016) (quoting White, 756 F.3d

at 595), but would still qualify as a “final judgment” under Rule

60(b), Stubblefield v. Windsor Capital Group, 74 F.3d 990, 992–

93 (10th Cir. 1996) (declining to review district court decision

The second problem is that the Tenth Circuit’s

application of ejusdem generis conflicts with the

surplusage canon. Neither the Tenth Circuit nor

Respondent explains how requiring a “judicial

determination” for a “proceeding” in the context of

Rule 60 would not render the term “proceeding”

superfluous. The Tenth Circuit provides no example

of a “judicial determination” that is neither a

judgment nor an order—and Respondent does not

either. There is a clear interpretation that gives effect

to every word in Rule 60 and accords with its plain,

ordinary meaning: an action or lawsuit that comes to

a close—and thus, is eligible for Rule 60 relief—

without a judicial determination. While Respondent

and the Tenth Circuit may wish to employ ejusdem

generis to effectively erase the word “proceeding” from

Rule 60 and to contradict its everyday usage,

“understood as this Court always has, the canons have

no such transformative effect on the workaday

language” of Rule 60. Yates v. United States, 574 U.S.

528, 564 (2015) (Kagan, J., dissenting).

C. The only other contention Respondent raises in

defense of the Tenth Circuit’s decision is that Rule 41

dismissals without prejudice are not “final” because a

plaintiff may re-file the case. Opp. 15–16. As noted

above, however, there is nothing about the ability to

re-file a new case that makes the dismissal under Rule

41 any less final. And there would be no “confusing

and destabilizing” effect as Respondent contends, id.

vacating Rule 68 judgment

interlocutory nature of appeal).

under

Rule

60(b)(1)

given

at 16, because Rule 60 sets forth specific criteria that

a plaintiff must satisfy to obtain relief. Indeed, this

case exemplifies the usefulness of Rule 60 relief where

there is a Rule 41 dismissal without prejudice: a

plaintiff who wants to and can re-file a new case likely

would prefer that route given that he or she would not

need to satisfy Rule 60’s stringent criteria, whereas a

plaintiff who cannot re-file a new case can rely only on

Rule 60 for a chance to reopen his or her case. There

is thus no basis, let alone need, to construe “final

proceeding” in Rule 60 as not covering a Rule 41

voluntary dismissal without prejudice.

III.

The Question Presented Is Important

And Respondent Concedes There Are

No Vehicle Problems

Given the clear circuit split and fact that the

question presented is both outcome determinative and

squarely presented, Respondent’s brief focuses on the

supposed lack of importance of the question

presented. Much of Respondent’s argument is

rhetorical, such as pejoratively describing an issue of

federal procedure as being “arcane.” E.g., Opp. 1, 2

(describing question presented as “exceedingly

narrow” and “arcane” and arising only in “unusual

circumstances”). Adjectives are no substitute for

substance, however, and the reality is that the

question presented directly implicates core limits on a

district court’s authority to reopen cases. See Pet. 15–

17; see also United States v. Roy, 855 F.3d 1133, 1166–

67 (11th Cir. 2017) (en banc) (explaining that

repeatedly arguing one cannot know if an error is

harmless without “speculation” “is couched in good

grammar and sensible syntax” but lacking in

substance).

Stripped of rhetoric, Respondent’s opposition

makes just two contentions: (1) the question

presented arises infrequently, and (2) any problem

can be fixed by the Rules Committee. Neither

contention undermines the need for review.

First, Respondent errs as to the frequency of the

issue. Putting aside that there are published appellate

decisions on point, plaintiffs frequently voluntarily

dismiss cases under Rule 41 only to seek to re-open

them later, as demonstrated by the fact that at least

three district courts in the Tenth Circuit have already

cited the decision below for the proposition that Rule

60(b) cannot be used to re-open voluntarily dismissed

cases. See Moore v. Hudson, 2024 WL 1051176, at *1

(D. Kan. Mar. 11, 2024) (citing Waetzig to hold the

court lacks the power to grant a Rule 60 motion); West

v. Wells Fargo Bank, N.A., 2023 WL 8261644, at *1 (D.

Utah Nov. 29, 2023) (citing Waetizg and stating,

“[i]ndeed, the Tenth Circuit has recently clarified that

even the plaintiff that dismissed the action is unable

to reopen the case”); Brody v. Bruner, 2024 WL

729654, at *1 (D. Colo. Feb. 22, 2024) (stating that

under Rule 41(a), “‘dismissal is automatic,

immediately divesting the district court of subjectmatter jurisdiction’”) (quoting Waetzig, Pet. App. 5a).

Conversely, the Fifth Circuit’s Yesh Music decision

has been cited numerous times for the proposition

that Rule 60 does authorize a court to re-open a case

that was voluntarily dismissed under Rule 41(a). E.g.,

Rismed Oncology Systems, Inc. v. Baron, 297 F.R.D.

637, 654–55 (N.D. Ala. 2014) (surveying cases

including Yesh Music to conclude that the Eleventh

Circuit would likely “adopt the majority position and

hold that a Rule 41(a)(1)(A) voluntary dismissal by a

plaintiff constitutes a ‘final order, judgment, or

proceeding’ for purposes of Rule 60(b)”); Thomas v.

Shulkin, 2019 WL 13293258, at *1 (S.D. Miss. Mar. 7,

2019) (“A voluntary dismissal without prejudice is a

‘final proceeding’ subject to vacatur under Fed. R. Civ.

P. 60(b)”) (citing Yesh Music, 727 F.3d at 362–63).

This caselaw also demonstrates the invalidity of

Respondent’s “unusual circumstances” argument.

Different circumstances may lead a party to seek to

re-open a case after a Rule 41(a) voluntary

dismissal—such as the expiration of a statute of

limitations—but the cited cases have a common

thread: whether principles of equity should permit a

plaintiff to re-open the case or instead be barred from

obtaining relief due to other procedural issues. And

this common thread is an important one, going to the

scope of a court’s authority to re-open cases where

justice warrants it. As Judge Matheson points out in

his dissent below, “if later those plaintiff-dismissed

claims cannot be reasserted (e.g., the statute of

limitations has run on the claims that were dismissed

without prejudice), their earlier dismissal without

prejudice may be functionally equivalent to a

dismissal with prejudice.” Pet. App. 25a. Indeed, Rule

60(b) itself is designed to provide relief only in

“‘exceptional circumstances,’” Motorola Credit Corp. v.

Uzan, 561 F.3d 123, 126 (2d Cir. 2009) (citation

omitted), and it therefore is logical and sensible that

Rule 60(b) relief would be available in circumstances

such as those here. See also Hormel v. Helvering, 312

U.S. 552, 557 (1941) (“Rules of practice and procedure

are devised to promote the ends of justice, not to

defeat them.”).

For these reasons, whether the text and

background of Rule 60(b) deprive a federal court of the

power to take action in circumstances like here is a

very important question. See McIntosh v. United

States, 601 U.S. 330, 338 (2024) (rejecting the

argument that Fed. R. Crim. P. 32.2(b)(2)(B) deprived

district court of power to “order forfeiture once [the

defendant] objected to the absence of a preliminary

order prior to his initial sentencing”).

Second, Respondent’s “Rules Committee” claim

does not weigh against review. This Court frequently

resolves questions of federal law that divide lower

courts even if they concern the Federal Rules, given

the importance of ensuring the uniform application of

those rules. See, e.g., Becker v. Montgomery, 532 U.S.

757, 762 (2001) (“We granted certiorari . . . to assure

the uniform interpretation of the governing Federal

Rules.”); McIntosh, 601 U.S. at 338 (holding Fed. R.

Crim. P. 32.2(b)(2)(B) “establishes a time-related

directive” not “a mandatory claim-processing rule”).

The same is true of federal statutes—while Congress

could resolve a dispute among lower courts as to the

proper interpretation of a statute, that does not

displace the Court’s role in resolving such disputes,

not only to resolve the specific split, but also to provide

guidance as to the proper methods of interpretation.

Finally, Respondent does not (and could not)

dispute that this case cleanly presents the question

presented. The issue is purely one of law, and the

Tenth Circuit’s decision rested directly on its

conclusion that, unlike the decision of the Fifth

Circuit, a Rule 41(a) “voluntary dismissal without

prejudice does not qualify as a final proceeding” and

thus cannot be reopened under Rule 60(b). Pet. App.

18a. Thus, the answer to the question presented

would be outcome-determinative for Petitioner, as

Respondent admits. See Opp. 17.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

SPENCER KONTNIK

AUSTIN COHEN

KONTNIK | COHEN,

LLC

201 Steele Street,