United States Court of Appeals
For the First Circuit
No. 00-2458
IN RE: UROHEALTH SYSTEMS, INC.,
Petitioner.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Schwarzer*, District Judge.
Brooks R. Magratten, with whom Vetter & White were on brief,
for Urohealth Systems, Inc.
Albert R. Romano, with whom Romano & Spinella were on brief,
for John Doe.
June 12, 2001
______________________
*Of the Northern District of California, sitting by
designation.
BOWNES, Senior Circuit Judge. Defendant-petitioner
Urohealth Systems, Inc. petitioned for an extraordinary writ to
review the district court’s stay order in this product liability
action. Urohealth contends that the district court flouted the
instructions in our earlier order in this case, Doe v. Urohealth
Systems, Inc., 216 F.3d 157 (1st Cir. 2000), and abused its
discretion in ordering the stay. We construe the extraordinary
writ as an appeal, vacate the stay order, and remand for further
proceedings.
I. BACKGROUND
On August 6, 1997, plaintiff John Doe sued Urohealth
in the United States District Court for the District of Rhode
Island. He asserted claims of strict liability, negligence, and
breach of warranty based on the alleged malfunction of a penile
prosthesis implanted on February 23, 1996.1
Discovery proceeded for sixteen months. During that
time, the district court chastised Doe for various abuses,
including designating in interrogatory answers multiple experts
that he had never in fact retained; not prosecuting his case
diligently; and propounding voluminous and inappropriate
discovery requests at the end of the discovery period. At the
1A fuller discussion of the claims and the procedural
history of this case can be found at Urohealth, 216 F.3d 157.
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initial close of discovery, Doe had not yet retained an expert.
Urohealth first moved for summary judgment on June 23,
1998. The district court extended the pretrial deadlines, and
Doe retained Edward Reese, Ph.D., as an expert. In response,
Urohealth supplemented its motion for summary judgment,
contending that Dr. Reese was unqualified and that his opinions
lacked foundation. The district court assigned that motion to
a magistrate judge, who ordered Urohealth to file a separate
Daubert motion to strike Dr. Reese. Urohealth did so on January
11, 1999.
On January 26, 1999, Doe sued Urohealth and Urohealth’s
wholly-owned subsidiary, Dacomed Corporation, in the Rhode
Island Superior Court, asserting the same product liability
claims as in the instant case. In the state court action, Doe
also sued the physician who implanted the prosthesis, Dr. Alan
Podis, and the treating hospital, Miriam Hospital.
On February 15, 1999, Doe moved to dismiss the federal
court action without prejudice under Fed. R. Civ. P. 41(a)(2).
Urohealth opposed the motion. In deciding the motion, the
district court correctly considered “the defendant’s effort and
expense of preparation for trial, excessive delay and lack of
diligence on the part of the plaintiff in prosecuting the
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action, insufficient explanation for the need to take a
dismissal, and the fact that a motion for summary judgment has
been filed by the defendant.” Urohealth, 216 F.3d at 160
(quoting Pace v. S. Express Co., 409 F.2d 331, 334 (7th Cir.
1969)). As we summarized in our earlier opinion:
The district court then indicated that, even
though the Pace factors favored Urohealth,
it did not believe that Urohealth would
“truly suffer legal prejudice” if it
dismissed the federal lawsuit without
prejudice because Urohealth still would have
to litigate these claims on behalf of
Dacomed in the state suit. Urohealth argued
that if the district court denied Doe’s Rule
41(a)(2) motion and granted Urohealth
summary judgment, the judgment would have
preclusive effect for both Urohealth and
Dacomed; thus, Urohealth could avoid
relitigating the case in state court. The
district court disagreed, reasoning that
even if summary judgment would preclude
relitigation for Urohealth in the state
case, Dacomed, which “is a separate entity,
albeit wholly owned by Urohealth,” would not
be protected by res judicata because it was
not a defendant in the federal case.
Id. at 161.
Urohealth appealed the district court’s order of
dismissal without prejudice. This court reversed the order on
the ground that “the district court’s main stated reason for
dismissing without prejudice was based on a legal error.” Id.
at 162-63. Specifically, we held that the district court erred
in assuming that Dacomed would not be entitled to assert a res
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judicata defense in state court if Urohealth had won summary
judgment in the federal action. We stated:
An evaluation of the res judicata effects
normally would not be part of the Rule
41(a)(2) analysis, but this case is unusual
because of the relationship of the two
entities. To the extent the district court
permissibly considered the potential
prejudice stemming from Urohealth’s having
to litigate on behalf of Dacomed in the
state case, we find an abuse of discretion
because the court erred in finding no
privity between the companies.
Id. at 161. We remanded the case to the district court, leaving
open the narrow possibility that the district court could, for
other reasons, dismiss the case without ruling on Urohealth’s
motion for summary judgment. Id. at 163.
On remand, the case was assigned to a different
district court judge, who ordered the parties to file new
memoranda supporting and opposing the motion to dismiss. On
November 8, 2000, the district court issued an order to stay the
federal matter until the resolution of parallel state court
proceedings. It stated:
I have at times stayed the federal action to
await the outcome of the state case because
the state outcome could make this litigation
moot, and since the state case is the more
comprehensive case, I think that’s the most
judicially economic result in this case. So
I’m not going to rule on the motion to
dismiss without prejudice or with prejudice.
I’m going to stay this case until the state
court litigation is completed, and then I
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will determine whether there’s anything left
to do, or decide, in this matter.
On November 24, 2000, Urohealth petitioned this court
for an extraordinary writ under Fed. R. App. P. 21(c). On
December 28, 2000, we issued an order conditionally treating the
extraordinary writ as a notice of appeal. We stated:
it appears that an extraordinary writ does
not lie because the challenged order is
appealable . . . . Nonetheless, there is
precedent for treating a petition for an
extraordinary writ as a notice of appeal . .
. and we exercise our discretion to do so
under the peculiar circumstances of this
case.
(citations omitted). We deferred the final disposition of the
question of our jurisdiction to the merits panel.
II. DISCUSSION
The first question before us is whether we have
jurisdiction over this matter, given that Urohealth petitioned
for an extraordinary writ rather than noticing a direct appeal
of the stay order. Urohealth sought review of the stay order by
means of a common law writ of certiorari, which is one of
several writs historically within the power of a court of
appeals under the All Writs Act, 28 U.S.C. § 1651(a). Under the
Act, Congress authorized federal courts to “issue all writs
necessary or appropriate in aid of their respective
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jurisdictions and agreeable to the usages and principles of
law.” Id.
The Supreme Court has defined the parameters of the use
of writs, holding them to be “extraordinary remedies . . .
reserved for really extraordinary cases.” Will v. United
States, 389 U.S. 90, 107 (1967); see also Boreri v. Fiat S.P.A.,
763 F.2d 17, 26 (1st Cir. 1985). Furthermore, it is well-
established that an extraordinary writ, such as a writ of
certiorari or a writ of mandamus, may not be used as a
substitute for an appeal and will not lie if an appeal is an
available remedy. See, e.g., Stauble v. Warrob, Inc., 977 F.2d
690, 693 (1st Cir. 1992) (mandamus is not a substitute for
appeal and will not lie if the petitioner has a remedy through
a direct appeal); In re Bushkin Assocs., Inc., 864 F.2d 241, 243
(1st Cir. 1989) (mandamus will not lie if there exist other
adequate means to attain relief).
Here, Urohealth apparently assumed that a direct appeal
was not an available remedy. This assumption is not supported
by applicable case law, however. The Supreme Court has held
that a district court’s stay order is appealable as a “final
decision” under 28 U.S.C. § 1291 if the purpose of the stay is
to effectively surrender jurisdiction of the federal suit to the
state court. Moses H. Cone Mem’l Hosp. v. Mercury Constr.
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Corp., 460 U.S. 1, 10 & n.11 (1983). There, the district court
stayed the federal proceedings because the state and federal
actions involved an identical issue. Id. at 10. The Court held
that the district court’s stay order was appealable, stating:
“a stay of a federal suit pending resolution of the state suit
meant that there would be no further litigation in the federal
forum; the state court’s judgment on the issue would be res
judicata.” Id.
Similarly, the stay order in the present case
effectively amounted to a dismissal of the federal suit. The
state and federal litigation were substantially alike and
Urohealth and Dacomed were likely in privity. Urohealth, 216
F.3d at 162. It is therefore probable that any decision in
state court would have had a preclusive effect on the federal
litigation. Id. Furthermore, the district judge indicated that
the reason for issuing a stay was to “await the outcome of the
state case because the state outcome could make this [federal]
litigation moot . . . .” Accordingly, an appeal would have been
an available remedy to Urohealth, precluding an extraordinary
writ. See Moses H. Cone, 460 U.S. at 10 & n.11.
It is thus clear that Urohealth should have appealed
the district court’s order rather than seeking an extraordinary
writ. We now must consider whether we should nonetheless treat
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Urohealth’s petition for an extraordinary writ as a notice of
appeal. There is precedent for this course of action. See,
e.g., In re Bethesda Mem’l Hosp., 123 F.3d 1407, 1408 (11th Cir.
1997) (“precedent permits us to treat the petition for the writ
of mandamus as a direct appeal, and we do so here”); Clorox Co.
v. United States Dist. Ct., 779 F.2d 517, 520 (9th Cir. 1985)
(treating a writ of mandamus as a notice of appeal); In re
Roberts Farms, Inc., 652 F.2d 793, 795 (9th Cir. 1981) (unaware
that an appeal had also been filed, the court construed the writ
of mandamus as a notice of appeal); see generally Smith v.
Barry, 502 U.S. 244, 247-49 (1992) (courts should liberally
construe the requirements for a notice of appeal under Fed. R.
App. P. 3).2 We conclude that it is appropriate to treat
Urohealth’s petition as an appeal under these particular factual
circumstances.
In submitting its petition for an extraordinary writ,
Urohealth followed the normal procedures required for a notice
of appeal. Urohealth provided a copy of its petition for a writ
of certiorari to the opposing party and to the district court
within the time period allotted for a notice of appeal. See
2Although this court has not spoken on this particular
issue, we have recognized our power to treat a notice of appeal
as a petition for a writ of mandamus. Phinney v. Wentworth
Douglas Hosp., 199 F.3d 1, 3 (1st Cir. 1999).
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Smith, 502 U.S. at 248 (stating that the purpose of a notice of
appeal is to “ensure that the filing provides sufficient notice
to other parties and the courts.”) Furthermore, if this court
had acted on Urohealth’s petition immediately upon its receipt,
Urohealth still would have had time to correctly file a notice
of appeal.3 For these reasons, we will treat the petition for
a writ of certiorari as a notice of appeal.4
Having determined that we have jurisdiction over this
matter, we now proceed to the merits of Urohealth’s appeal.
Urohealth contends that the district court erred in refusing to
rule on Doe’s motion to dismiss and in staying the case pending
resolution in the state court. We review the district court's
issuance of a stay order for abuse of discretion. Walsh v.
Walsh, 221 F.3d 204, 213 (1st Cir. 2000).
When remanding this matter for further proceedings
consistent with our opinion, we provided detailed guidance to
the district court. We explained that Urohealth would be
3
At the time this court issued a preliminary order on this
matter, the thirty-day time period for filing an appeal had
already expired.
4
This conclusion should not be construed as holding that
extraordinary writs should always be treated as notices of
appeal. See Clorox Co., 779 F.2d at 520 (treating a writ of
mandamus as a notice of appeal on the limited facts of the case,
but concluding that generally it is “unwise to blur the
distinction between mandamus and appeal procedures by allowing
one to substitute for the other . . . .”)
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prejudiced if the state court action was allowed to proceed and
Urohealth was forced to litigate on behalf of Dacomed.
Urohealth, 216 F.3d at 161-63. We stated that, absent new
reasons to support a voluntary dismissal, Doe’s motion to
dismiss should be denied and Urohealth’s motions should be
heard. Id. at 163. We left only narrow room for the district
court to allow Doe’s motion to dismiss without prejudice:
This [remand] does not necessarily preclude
the possibility that for some other reason
the district court could dismiss the case
without ruling on the summary judgment
motion, but given the record, it is somewhat
difficult to discern what that reason might
be. As matters now stand, the defendant has
made a significant investment of time and
money in the case, a motion for summary
judgment apparently is ripe for decision,
and judgment in favor of Urohealth would
avoid what may be otherwise years of
litigation in state court against its
subsidiary on an identical claim.
Id. We also made clear our disapproval, absent unusual
circumstances, of forcing Urohealth or Dacomed to litigate all
over again in state court a matter that had been brought to the
present stage in a federal court:
We do think that a plaintiff cannot conduct
a serious product liability claim in a
federal court, provoke over a year's worth
of discovery and motion practice, allow the
case to reach the stage at which the
defendant filed a full-scale summary
judgment motion, and then when matters
seemed to be going badly for plaintiff
simply dismiss its case and begin all over
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again in a state court in what is
essentially an identical proceeding.
Id.
The district court’s order did not comport with our
opinion in Urohealth. Rather, it stayed the case until the
completion of the state court litigation. By allowing that
litigation to proceed, its ruling was tantamount to dismissing
the federal case without prejudice. Cf. Moses H. Cone, 460 U.S.
at 10. Therefore, it effectively reinstated the very ruling
this court reversed. Contrary to our opinion, at no point did
the district court mention any new reasons to support its
decision to not rule on the summary judgment motion. See
Urohealth, 216 F.3d at 163.
The court's failure to follow the law of the case
amounts to an abuse of discretion. See United States v.
Alexander, 106 F.3d 874, 876 (9th Cir. 1997). A review of the
record indicates that Doe submitted no new arguments that would
warrant dismissal without prejudice. Accordingly, we vacate the
stay order and remand this matter. We direct the district court
to deny Doe's motion to dismiss and to hear Urohealth's pending
motions forthwith.
Vacated and remanded for further proceedings consistent
with this opinion.
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