In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-1892

PETER T. DVORAK,

Plaintiff-Appellant,

v.

GRANITE CREEK GP FLEXCAP I, LLC; MARK A. RADZIK; and 

PETER LEHMAN,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16 C 9996 — Thomas M. Durkin, Judge.

____________________

ARGUED OCTOBER 29, 2018 — DECIDED NOVEMBER 6, 2018

____________________

Before BAUER, EASTERBROOK, and SCUDDER, Circuit Judges.

EASTERBROOK, Circuit Judge. A plaintiff may dismiss a 

federal suit without prejudice to refiling. That privilege may 

be used only once. “[I]f the plaintiff previously dismissed 

any federal- or state-court action based on or including the 

same claim, a notice of dismissal operates as an adjudication 

on the merits.” Fed. R. Civ. P. 41(a)(1)(B). Illinois follows the 

same rule. 735 ILCS 5/13-217.
2 No. 18-1892

This appeal arises from a federal-state-federal sequence: 

the first suit was filed in federal court and dismissed, the 

second was filed in Illinois court and dismissed, and the 

third is back in federal court. The district judge deemed the 

Illinois statute applicable and dismissed the third suit with 

prejudice. 2017 U.S. Dist. LEXIS 25211 (N.D. Ill. Feb. 23, 2017).

Rule 41(a)(1)(B) does not by itself require dismissal, because it ajaches consequences only to the federal court’s 

own acts. So if the first suit is filed in state court and dismissed, and the second is filed in federal court, then voluntary dismissal of the second suit is covered by Rule 

41(a)(1)(B) and is with prejudice. But when the second suit is 

filed and dismissed in state court, state law determines 

whether that act is with or without prejudice. Still, the effect 

that Illinois law gives to a second dismissal depends on the 

proper characterization of the initial dismissal—and that is 

an issue of forum law. Federal law determines the appropriate characterization of what happens in federal court, then 

state law determines whether (given that characterization) 

the later dismissal of a state suit is with or without prejudice.

Here is the text of 735 ILCS 5/13-217 (emphasis added):

[I]f judgment is entered for the plaintiff but reversed on appeal, 

or if there is a verdict in favor of the plaintiff and, upon a motion 

in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed 

by a United States District Court for lack of jurisdiction, or the action 

is dismissed by a United States District Court for improper venue, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff ... 

may commence a new action within one year or within the remaining period of limitation, whichever is greater ... .
No. 18-1892 3

Gendek v. Jehangir, 119 Ill. 2d 338 (1988), holds that this law 

permits only a single refiling.

All three of Dvorak’s suits contend that one or more of 

the defendants mishandled a capital call for a limited partnership (Granite Creek Flexcap I LP) in which he had invested. The errors allegedly caused Dvorak to lose his stake in 

the partnership. Dvorak’s first suit, in federal court under 

the diversity jurisdiction, named the partnership among the 

defendants. His lawyer failed to investigate the citizenship 

of other partners and thus did not appreciate that the suit 

did not come within federal subject-majer jurisdiction—for 

Dvorak and at least one of the other partners are citizens of 

Florida, and in a suit under 28 U.S.C. §1332(a) a partnership 

has the citizenship of every partner, limited as well as general. Carden v. Arkoma Associates, 494 U.S. 185 (1990).

Dvorak had three choices: he could have dismissed the 

partnership as a defendant, he could have waited for the 

judge to dismiss the case for lack of jurisdiction, or he could 

have dismissed the whole suit. Had he elected the second 

option, then the dismissal for lack of jurisdiction would have 

fit §5/13-217, and the suit would have counted under the 

state’s single-refiling statute. Instead he elected the third option, in which defendants concurred.

Dvorak refiled the suit in state court. A state judge dismissed one of his claims on the merits. Rather than wait for 

decision on his remaining claims, Dvorak dismissed the state 

suit and filed this third action in federal court, omijing both 

the partnership and the theory on which he had already lost 

in state court. Defendants then moved to dismiss on the 

ground that §5/13-217 permits one refiling, not two. Dvorak’s principal response is that the first suit was dismissed 
4 No. 18-1892

by agreement of all parties rather than by the plaintiff unilaterally and so does not count under Illinois law, which refers to an “action ... voluntarily dismissed by the plaintiff”.

The right way to understand what happened in the first 

suit depends on the law of the federal forum where it had 

been filed, so we reproduce the rule under which the parties 

stipulated to the suit’s dismissal:

Rule 41. Dismissal of Actions

(a) VOLUNTARY DISMISSAL.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e), 

23.1(c), 23.2, and 66 and any applicable federal 

statute, the plaintiff may dismiss an action without 

a court order by filing:

(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared.

(B) Effect. Unless the notice or stipulation states 

otherwise, the dismissal is without prejudice. But if 

the plaintiff previously dismissed any federal- or 

state-court action based on or including the same 

claim, a notice of dismissal operates as an adjudication on the merits.

Dvorak insists that a stipulation of dismissal differs from a 

voluntary dismissal by the plaintiff, but Rule 41 tells us otherwise. Dismissal by stipulation is classified in the same

place as unilateral dismissal. Rule 41(a) labels both situations 

as voluntary dismissals by the plaintiff.
No. 18-1892 5

Dvorak wants us to ignore the headings in Rule 41, but 

we think that they should be given the same effect as the rest 

of the Rule. Under the Rules Enabling Act, 28 U.S.C. §§ 2071–

77, headings and text are promulgated together by the Supreme Court, on the recommendations of the Judicial Conference, the Standing Commijee on Rules of Practice and 

Procedure, and the appropriate advisory commijee. They 

are equally authoritative. See Charles Alan Wright & Arthur 

R. Miller, 4 Federal Practice & Procedure §1007 (3d ed. 2008). 

No majer the right way to treat headings in statutes, which 

may be added by codifiers after a law is enacted, the headings, labels, and captions in the federal rules have the same 

source, and same authenticity, as the text of the rules.

Suppose we throw out the captions and headings. Nothing changes, because they are accurate. See Wright & Miller, 

9 Federal Practice & Procedure §2363. Unilateral dismissal by 

the plaintiff is a subset of a dismissal to which all parties 

agree. Both reflect the plaintiff’s consent—a consent that is 

necessary to the disposition—and so are voluntary dismissals from the plaintiff’s perspective. A dismissal is not less a 

voluntary dismissal by the plaintiff just because other parties 

agree that the suit should end. And so we thought in Jenkins 

v. Maywood, 506 F.3d 622 (7th Cir. 2007). We do not call Jenkins a holding on that point because the contested issue was 

not how to characterize a stipulated dismissal, but what date 

it should receive. Still, the court thought it obvious that a 

joint notice of dismissal is a kind of voluntary dismissal, because the plaintiff’s consent is essential. What was an assumption in Jenkins becomes a holding today.

This brings us back to Illinois law, for the fact that a federal court calls a stipulated dismissal a voluntary dismissal 
6 No. 18-1892

by the plaintiff does not necessarily make it one for the purpose of state law—and state law governs the effect of a state 

court’s judgment. See 28 U.S.C. §1738. Whether a stipulated 

dismissal counts as a voluntary dismissal by the plaintiff, for 

the purpose of §5/13-217, is something that the Supreme 

Court of Illinois decided in Gendek. It held that a stipulated 

dismissal counts. Dvorak contends that Gendek did not really 

hold this, despite its language, because there had been two 

motions in that case: one by plaintiff alone and one by stipulation. Yet the Supreme Court of Illinois treated all-party

stipulation as a voluntary dismissal by the plaintiff, and we 

read Gendek that way in Evans v. Lederle Laboratories, 167 F.3d 

1106 (7th Cir. 1999). No court, state or federal, has understood Gendek any other way. It follows that the dismissal of 

Dvorak’s first federal suit counts under §5/13-217, making 

the current suit his third. It is barred by §5/13-217.

Two complications require brief ajention.

First, this third suit includes two defendants (Mark 

Radzik and Peter Lehman) who were not parties to the first 

suit. The district court held that both are entitled to prevail 

because the Illinois one-refiling statute applies with respect 

to all persons who could have been named in the initial 

suits, whether or not they were, provided that the new suit 

arises from the same transaction (or, equivalently, the same 

core of operative facts). The district court correctly applied 

the analysis of this subject in Evans. Accord, Muhammad v. 

Oliver, 547 F.3d 874, 877–78 (7th Cir. 2008). The reasoning of 

those decisions need not be repeated here.

Second, this suit includes one claim against Radzik that 

does not arise from the same transaction as the first two suits 

and so is not covered by the one-refiling rule or the doctrine 
No. 18-1892 7

of claim preclusion. Radzik was the manager of Granite 

Creek GP Flexcap I, LLC, which was the general partner of 

the Granite Creek Flexcap I partnership in which Dvorak 

had invested. Radzik also was one of Dvorak’s personal 

creditors. In mid-2008 Dvorak owed about $750,000 to 

Radzik. When the partnership issued a capital call, also for 

$750,000, Dvorak told Radzik that he could not satisfy both 

obligations and asked him what to do. According to the 

complaint, from which the statements in this paragraph 

come, Radzik told Dvorak to pay the personal debt ahead of 

the partnership debt. Dvorak now contends that this advice 

was negligent and led to the loss of his interest in the partnership. The district court dismissed this new claim as 

barred by the five-year statute of limitations for negligence 

claims in Illinois. 2018 U.S. Dist. LEXIS 48810 (N.D. Ill. Mar. 

26, 2018). The claim accrued in 2008, the judge held, so Dvorak’s suit in 2016 came years too late.

Dvorak contests this decision on the ground that the 

complaint alleges other, later wrongful acts by Radzik. According to Dvorak, when one person commits multiple 

wrongs the statute of limitations runs from the last of them. 

That is so when multiple wrongs cause a cumulative injury. 

See Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 

Ill. 2d 325, 345 (2002). See also, e.g., National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (distinguishing discrete wrongs, each of which carries its own period of limitations, from acts that become wrongful only cumulatively). 

But Dvorak does not allege that it took multiple steps by 

Radzik to add up to one tort or that he suffered cumulative 

harm from a series of similar acts. Nor does he contend that 

Radzik always acted in the same capacity. Instead he alleges 

that in 2008 Radzik preferred his own interests over those of 
8 No. 18-1892

both Dvorak and the partnership, and that in later years, in 

his capacity as the manager of the partnership’s general 

partner, Radzik took different steps that led to other partners 

acquiring Dvorak’s stake. These events are discrete, as are 

the capacities in which Radzik acted and the harms Dvorak 

suffered. The legal theories also are discrete: negligence for 

Radzik’s advice in 2008 and breach of fiduciary duty for 

those later events in which Radzik was acting on behalf of 

the general partner. Illinois does not allow allegations of distinct new wrongs to extend, indefinitely, the time to sue on 

old ones. Belleville Toyota, 199 Ill. 2d at 348–49. The district 

court properly dismissed this claim.

AFFIRMED