In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4248

BONNIE M. WOJTAS and RICHARD J. WOJTAS,

Plaintiffs-Appellants,

v.

CAPITAL GUARDIAN TRUST COMPANY now known as

CAPITAL BANK & TRUST COMPANY,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 05 C 317—John C. Shabaz, Judge.

____________

ARGUED MAY 1, 2006—DECIDED FEBRUARY 15, 2007

____________

Before EASTERBROOK, Chief Judge, and MANION and

SYKES, Circuit Judges.

SYKES, Circuit Judge. Bonnie and Richard Wojtas

appeal the district court’s denial of their motion to voluntarily dismiss their suit against the former custodian of

Bonnie Wojtas’s IRA account, Capital Guardian Trust

(“Capital”), and the court’s order dismissing the suit with

prejudice on statute of limitations grounds. The district

court determined that permitting voluntary dismissal

without prejudice under Rule 41(a)(2) of the Federal

Rules of Civil Procedure would deprive Capital of its

statute of limitations defense under Wisconsin law, re-
2 No. 05-4248

sulting in plain legal prejudice. The court then granted

judgment on the pleadings dismissing the suit as timebarred. We affirm.

I. Background

Plaintiff Bonnie Wojtas was the owner of an Individual

Retirement Account (“IRA”), the custodian of which was

the defendant Capital. In April 1999 Wojtas instructed

Capital to roll over the investment holdings in her IRA

into a new IRA account managed by Insurance Planning &

Design, Inc. (“Insurance Planning”). When the funds were

received by Insurance Planning, they were illegally

converted by an employee of that company who was later

convicted of mail fraud. Wojtas and her husband (who

claims a marital property interest in the stolen funds) sued

Capital in state court asserting common law claims for

breach of fiduciary duty and negligence. The suit alleged

Capital had breached duties owed to the Wojtases when

it transferred the IRA funds without first verifying that

the successor custodian was qualified by the Internal

Revenue Service to serve in such capacity. Capital removed

the action to the United States District Court for the

Western District of Wisconsin on the basis of diversity

of citizenship.

Capital answered and eventually moved for judgment

on the pleadings pursuant to Fed. R. Civ. P. 12(c), arguing

that the Wojtases’ claims were barred by Wisconsin’s

two-year statute of limitations governing claims for

breach of fiduciary duty. See WIS. STAT. § 893.57; Beloit

Liquidating Trust v. Grade, 2004 WI 39, ¶ 40, 270 Wis. 2d

356, ¶ 40, 677 N.W.2d 298, ¶ 40. Capital argued that the

negligence and fiduciary duty claims were premised upon

the same alleged breach of duty and both should be subject to the two-year limitations period applicable to breach

of fiduciary duty claims. The complaint was filed more
No. 05-4248 3

than two years after the Wojtases asserted they learned

of their injury, when the employee of Insurance Planning

was indicted. In the alternative Capital argued that the

complaint failed to state a claim upon which relief could

be granted because Capital had no legal duty to independently investigate the successor custodian the Wojtases

had themselves selected.

The Wojtases’ response to Capital’s motion addressed

the failure-to-state-a-claim argument, but was utterly

silent regarding the statute of limitations. Instead, the

Wojtases moved for voluntary dismissal of their suit

pursuant to Fed. R. Civ. P. 41(a)(2), asking that their

claims be dismissed without prejudice so they could refile

the action in Illinois, where a longer statute of limitations

applies to claims for breach of fiduciary duty. See 735 ILL.

COMP. STAT. 5/13-205.

In a decision addressing both motions, the district court

denied the motion for voluntary dismissal and granted

the motion for judgment on the pleadings. The court

held that the Wojtases’ lack of response to Capital’s

statute of limitations argument meant they had “implicitly

acquiesced in defendant’s position that . . . [the] claims

against defendant Capital are barred by the Wisconsin

statute of limitations.” The court then held that voluntary

dismissal without prejudice would deprive Capital of its

statute of limitations defense, a loss that would constitute the type of “plain legal prejudice” that makes

voluntary dismissal improper under Rule 41(a)(2). The

court noted that under Wisconsin law, expiration of the

applicable statute of limitations operates to extinguish a

plaintiff’s cause of action in its entirety, rather than

merely barring the remedy in Wisconsin such that refiling the same claim in another jurisdiction would be

permitted. See WIS. STAT. § 893.05 (When the limitations

period expires, “the right is extinguished as well as the

remedy.”). Regarding the propriety of voluntary dismissal
4 No. 05-4248

in this situation, the district court distinguished this

court’s decision in Bolten v. Gen. Motors Corp., 180 F.2d

379 (7th Cir. 1950), and endorsed the reasoning of the

Fifth and Eighth Circuits in Phillips v. Ill. Cent. Gulf R.R.,

874 F.2d 984 (5th Cir. 1989), and Metro. Fed. Bank v. W.R.

Grace & Co., 999 F.2d 1257 (8th Cir. 1993).

II. Discussion

The Wojtases argue on appeal that the district court

erred in dismissing their negligence claim on statute of

limitations grounds. They acknowledge that they never

responded to Capital’s statute of limitations argument,

but take the position that Capital’s motion was directed

only at their claim for breach of fiduciary duty and never

actually sought dismissal of their negligence claim. Thus,

their argument goes, the negligence claim remains fully

viable because it was filed within the six-year statute of

limitations applicable to damages claims for injury to real

or personal property. See WIS. STAT. § 893.52 (“An action,

not arising on contract, to recover damages for an injury

to real or personal property shall be commenced within

6 years after the cause of action accrues or be

barred . . . .”). This argument completely ignores the content of Capital’s motion for judgment on the pleadings.

As we have noted, Capital’s Rule 12(c) motion unambiguously sought dismissal of both the fiduciary duty and

negligence claims, arguing that they were premised on the

same alleged breach of duty and were governed by the twoyear statute of limitations applicable to claims of breach

of fiduciary duty. Capital maintained that the negligence

claim was nothing more than a reiteration of the fiduciary

duty claim with a negligence label attached to it. The

Wojtases’ failure to offer any opposition to Capital’s

statute of limitations argument constituted a waiver.

Cincinnati Ins. Co. v. E. Atl. Ins. Co., 260 F.3d 742, 747
No. 05-4248 5

(7th Cir. 2001) (A failure to oppose an argument permits

an inference of acquiescence and “acquiescence operates as

a waiver.”). The district court noted the waiver and

ordered that “Capital’s motion for judgment on the pleadings that plaintiffs’ claims are barred by the applicable

Wisconsin statute of limitations is granted.” (Emphasis

added.) This was not error. The Wojtases’ argument that

Capital’s motion addressed only the fiduciary duty claim

is meritless.

The Wojtases also contend they were entitled to voluntarily dismiss their suit under Rule 41(a)(2). When sought

after a defendant has filed an answer, voluntary dismissal

may be obtained only “upon order of the court and upon

such terms and conditions as the court deems proper.”

FED. R. CIV. P. 41(a)(2). Motions for voluntary dismissal

under Rule 41(a)(2) are committed to the district

court’s discretion, but it is an abuse of discretion for the

district court to permit the voluntary dismissal of an

action where the defendant would suffer “plain legal

prejudice” as a result. United States v. Outboard Marine

Corp., 789 F.2d 497, 502 (7th Cir. 1986); Kovalic v. DEC

Int’l, Inc., 855 F.2d 471, 474 (7th Cir. 1988). The Wojtases

argue that the prospect of a new lawsuit in Illinois does

not constitute plain legal prejudice to Capital, citing

Bolten, 180 F.2d at 382, for the proposition that facing a

second suit in another state with a longer statute of

limitations is not the type of prejudice that justifies the

denial of a Rule 41 motion for voluntary dismissal.

In Bolten, the plaintiff sought voluntary dismissal under

Rule 41(a)(2) after the defendant filed a motion for summary judgment based on the expiration of the applicable

Illinois statute of limitations. The plaintiff admitted that

he planned to refile the lawsuit in Missouri, which had

a longer limitations period. This court held that the

discretion of the district court under Rule 41(a)(2) was

limited to the “terms and conditions” of dismissal, not the
6 No. 05-4248

right of the plaintiff to voluntarily dismiss his suit. The

Bolten opinion noted that “the adjudication on [the limitations] issue had nothing to do with the merits of the case

and meant nothing more than that the action could not

proceed in the Illinois jurisdiction,” 180 F.2d at 382 (citing

Titus et ux. v. Wells Fargo Bank & Union Trust Co., 134

F.2d 223, 224 (5th Cir. 1943) (“Limitation statutes operate on the remedy. They do not extinguish the right.”)).

The court concluded that “while the defendant by the

allowance of the plaintiff’s motion may be subjected to the

annoyance and expense of a suit on the merits, it will not

suffer any legal prejudice.” Id.

The Wojtases’ reliance on Bolten is misplaced. To the

extent Bolten held that voluntary dismissal under Rule

41(a)(2) is a matter of right and not discretion, the case

has been explicitly repudiated. J.R. Adney v. Miss. Lime

Co. of Mo., 241 F.2d 43, 45-46 (7th Cir. 1957); Grivas v.

Parmelee Transp. Co., 207 F.2d 334, 336 (7th Cir. 1953).

This court noted in Adney that Bolten’s interpretation of

Rule 41(a)(2) “was subsequently rejected in Grivas . . . ,

where the court stated that the allowance of a motion

to dismiss under Rule 41(a)(2) is not a matter of right,

but is discretionary with the District Court both as to

whether a dismissal shall be allowed as well as to the

terms and conditions to be imposed if allowed.” 241 F.2d

at 45-46.

Moreover, as the district court correctly concluded,

Bolten is distinguishable. Wisconsin law conferred on

Capital a vested right—not present in Bolten—that would

have been rendered useless if voluntary dismissal without

prejudice was granted. In Wisconsin the expiration of the

statute of limitations does more than merely close the

door of the courthouse. “The expiration of the limitations

period extinguishes the cause of action of the potential

plaintiff and it also creates a right enjoyed by the would-be
No. 05-4248 7

defendant to insist on that statutory bar.” Colby v. Columbia County, 202 Wis. 2d 342, 350, 550 N.W.2d 124, 128

(1996); see also WIS. STAT. § 893.05 (“When the period

within which an action may be commenced on a Wisconsin cause of action has expired, the right is extinguished

as well as the remedy.”). Capital, having acquired a right

to assert the statute of limitations bar by operation of

Wisconsin law, would suffer plain legal prejudice if the

Wojtases’ motion for voluntary dismissal were granted. See

Metro. Fed. Bank, 999 F.2d at 1263 (it is an “abuse of

discretion for a district court to find no legal prejudice, and

thus to grant voluntary dismissal, where the nonmoving

party has demonstrated a valid statute of limitations

defense”); see also Phillips, 874 F.2d at 987. The district

court did not abuse its discretion in denying the motion

for voluntary dismissal.

 AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-15-07