In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3754

THOMAS KUZNAR, as

Administrator of The Estate of

EMILIA PIASTOWSKA KUZNAR,

Plaintiff-Appellee,

v.

ANNA KUZNAR,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 11 C 9229 — Joan Humphrey Lefkow, Judge. 

SUBMITTED DECEMBER 5, 2013* — DECIDED JANUARY 5, 2015

Before WOOD, Chief Judge, and SYKES and TINDER, Circuit

Judges.

* After examining the parties’ briefs and the record, we concluded that oral

argument was unnecessary. The appeal was therefore submitted on the

briefs and the record. See FED. R. APP. P. 34(a)(2)(C).
2 No. 12-3754

SYKES, Circuit Judge. Mieczyslaw (“Mitchell”) Kuznar left

his native Poland and moved to the United States, leaving his

wife Emilia and their son Thomas behind. Once in America, he

met and married Anna. But he never divorced Emilia, so his

death intestate in 1995 set off a long-running legal battle over

survivorship rights to his pension. Anna began collecting

spousal benefits in 1995. Litigation commenced in 1997 when

Thomas—now grown and also living in the United States—

opened a probate case in Illinois state court seeking judicial

administration of Mitchell’s estate. Thomas was acting on his

mother’s behalf; Emilia remained in Poland.

The probate court eventually ruled in Emilia’s favor,

granting Thomas’s motion for summary judgment and

ordering Anna to pay Emilia the amount she had collected

from Mitchell’s pension fund. But Emilia died before this

judgment was entered, so the Illinois Appellate Court vacated

and remanded for entry of a new judgment. In 2011 Thomas

opened a new case in probate court for the administration of

Emilia’s estate and then renewed his motion for summary

judgment in the 1997 case, this time on behalf of his mother’s

estate.

To stave off near-certain defeat in the proceedings on

remand, Anna tried a procedural gambit: She filed a notice of

removal. Jurisdictional and procedural wrangling ensued.

Anna’s removal notice listed the 2011 probate case but attached

Thomas’s renewed motion for summary judgment, which she

claimed was “in the nature of a complaint filed by the recently

opened estate” but was mistakenly filed in the 1997 case. 
No. 12-3754 3

While the district court tried to sort out the morass, Thomas

simplified matters by filing a notice of voluntary dismissal

under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. The court held the dismissal notice in abeyance to

determine what exactly had been removed. At this point, and

perhaps realizing that she had been outmaneuvered, Anna did

an about-face, telling the judge that she had actually removed

the 1997 case, not the 2011 case, and that no dismissal could be

valid unless it dismissed the 1997 case in its entirety.

The district judge wasn’t impressed by this argument and

neither are we. Anna’s initial submissions in the district court

make it clearthat she was attempting to remove a “new action”

that she claimed was filed in the recently opened 2011 probate

case. That was a doubtful characterization of Thomas’s

renewed motion for summary judgment, but he was entitled to

accept it and voluntarily dismiss the supposed “new action”

rather than dispute Anna’s shifting characterization of his

filings.

I. Background

The complicated story of this unfortunate litigation begins

in 1953, when Mieczyslaw Kuznar (known as “Mitchell”)

married Emilia Piastowska in Poland. The couple had a son

named Thomas. At some point—we don’t know when—

Mitchell moved to the United States, leaving Emilia and

Thomas behind. Mitchell later married Anna, although his

marriage to Emilia was never annulled or otherwise terminated. When Mitchell died intestate in 1995, Anna began
4 No. 12-3754

collecting spousal survivorship benefits under his pension

plan. 

Emilia, still living in Poland, thought that she was entitled

to the benefits. Thomas, now an adult and living in Illinois,

took his mother’s side in the dispute. In 1997 he opened a file

in Illinois probate court seeking judicial administration of

Mitchell’s estate on his mother’s behalf. Three years later he

won a ruling that Emilia was Mitchell’s surviving spouse. 

Litigation continued for another decade, and the probate court

eventually granted Thomas’s motion for summary judgment,

ordering Anna to pay Emilia the amount she had received

from Mitchell’s pension fund. But Emilia died before the

judgment was entered. Based on this procedural error—

entering judgment in favor of a dead plaintiff—the Illinois

Appellate Court vacated and remanded.

Thomas, sensing that victory was near, tried again. In 2011

he opened a new case in probate court for the administration

of Emilia’s estate. Then, as administrator of his mother’s estate,

he renewed his motion for summary judgment in the 1997 case,

only this time on behalf of Emilia’s estate rather than Emilia

herself.

Anna immediately filed a notice of removal listing the 2011

case number in the caption of her notice and attaching the

pleadings in the newly opened probate file. But she also

attached Thomas’s renewed motion for summary judgment in

the 1997 case, arguing that the motion was really “the first

pleading filed on behalf of a new entity”—i.e., Emilia’s

estate—and “[a]lthough erroneously filed as a motion (and

erroneously filed under a case number and caption in which
No. 12-3754 5

[Emilia's] Estate is not a party), th[e] pleading is in the nature

of a complaint filed by the recently opened estate.” The stated

jurisdictional basis forremoval was diversity of citizenship and

the presence of a federal question under ERISA.

The day after filing her notice of removal, Anna went back

to the state court and asked for relief in the 1997 case. After

entering judgment, the probate court had attached some of

Anna’s property because she was unable to post a bond

pending appeal. With the judgment now vacated and the case

returned to the probate court, Anna asked the judge to release

herproperty from the attachment order. The judge granted this

request and vacated the attachment.

Thomas responded to all these events by asking the federal

court to remand the case and void the state court’s postremoval order vacating the property attachment. Anna fought back,

arguing that the attachment proceedings in the 1997 case had

“absolutely nothing to do with the legal proceedings initiated

[in 2011] by the Estate of Emilia Piastowska.” She continued to

insist that Thomas had “inexplicably filed what has to be

viewed as a new ‘complaint’ with a new party and sought to

‘place the complaint’ underthe old case number—and it is this

new action which was removed and which belongs in federal

court.” Accusing Thomas of “crafty pleading,” she reiterated

that she had removed only the “new action” he initiated in

2011 in the newly opened probate file, so the state judge was

free to revisit the attachment order in the 1997 case involving

Mitchell’s estate.

The district judge was understandably flummoxed by all of

these filings and asked for supplemental briefing to clarify
6 No. 12-3754

what had happened in the state court. Instead of responding to

the court’s request and continuing to fight over the propriety

of removal, Thomas chose an easier route: He voluntarily

dismissed the “new action” that Anna claimed he was bringing

on behalf of Emilia’s estate. The judge ordered the dismissal

notice “held in abeyance” to sort out the jurisdictional and

procedural quagmire.

Anna vigorously challenged Thomas’s maneuver. Completely changing her tune, she now insisted that the only case

before the federal court was the 1997 case, not the 2011 case.

After all, she pointed out, Thomas had filed his renewed

motion for summary judgment in the 1997 case, and “having

selected where and under what caption to file [the estate’s]

claim, [he] cannot be heard to argue now that the [1997] case is

not before this Court.” She continued that if Thomas’s voluntary dismissal was valid, then it must be construed to dismiss

the 1997 case in its entirety.

The district judge rejected Anna’s arguments, accepted

Thomas’s voluntary dismissal of the 2011 “new action,” and

terminated the case. Anna’s motion for reconsideration also

failed, and she has appealed, trying to keep the fight in federal

court.2

2 Anna filed her notice of appeal within 30 days of the district court’s order

accepting Thomas’s voluntary dismissal and terminating the case but

outside the 30-day appeal deadline if measured from the date Thomas filed

the notice of voluntary dismissal. Ordinarily a voluntary dismissal under

Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure is self-executing

and terminates the case without the need for an order from the court. See

(continued...)
No. 12-3754 7

II. Discussion

The first and most obvious flaw in Anna’s effort to secure

a federal forum for this protracted dispute is her attempt to

remove a motion for summary judgment. Motions aren’t

removable; the removal statute permits the removal of “civil

actions.” 28 U.S.C. § 1441. Anna’s initial filings make it clear

that she was asking the federal court to construe Thomas’s

renewed motion for summary judgment as a “new action”

commenced in the 2011 case involving Emilia’s estate. She

claimed that this “new action” was cunningly—or at best,

mistakenly—filed in the 1997 case, but urged the federal court

to ignore the misfiling and construe the motion as a complaint

in the 2011 case.

Anna now insists, as she did in response to Thomas’s

dismissal notice, that she was really trying to remove the 1997

case involving Mitchell’s estate, so the voluntary dismissal

either (1) fails because it purports to dismiss a 2011 case that

isn’t in federal court; or (2) actually terminates the entire 1997

case in which Thomas has been so successful. This argument

contradicts Anna’s initial submissions in the district court.

2

 (...continued)

Smith v. Potter, 513 F.3d 781, 782–83 (7th Cir. 2008); Jenkins v. Village of

Maywood, 506 F.3d 622, 624 (7th Cir. 2007). Here, however, the district court

expressly held Thomas’s notice of voluntary dismissal in abeyance in order

to clarify which case had been removed. Once that ambiguity was removed,

the court accepted the voluntary dismissal and terminated the case, and

Anna appealed within 30 days of that date. The appeal is timely and our

jurisdiction is secure.
8 No. 12-3754

In her notice of removal, Anna claimed that Thomas’s

motion didn’t belong in the 1997 case at all, but instead had

been “erroneously filed under a case number and caption in

which [Emilia’s] Estate is not a party.” This was a crucial point

in the parties’ early jurisdictional skirmish while the district

judge was trying to sort out what exactly had been removed.

Any attempt to remove the 1997 case would have been

untimely by more than a decade; removal is permitted within

30 days after the filing of the first paper showing the basis for

removal, see 28 U.S.C. § 1446(b)(1), (3), and Anna’s stated

jurisdictional basis for removal—diversity of citizenship and

the presence of a federal question under ERISA—was known

from the start.

Indeed, in her memorandum in response to Thomas’s

motion to remand, Anna explained that her removal notice

was timely precisely because Thomas’s summary-judgment

motion was in fact a “new action” in the 2011 case but was

mistakenly captioned and filed in the 1997 case: 

The Plaintiff Estate (Cook County Case No. 11P

6624) was created on December 8, 2011 and its

first pleading stating a claim against the Defendant was filed on December 19, 2011. ... 

It is the Plaintiff which has opened an estate ... 

creating a new entity with its own case number. ... [T]he only way such an entity can pursue

a claim against a third party is by filing a new

action against that party ... .

In other words, the 2011 action, not the 1997 case, was the

subject of the removal.
No. 12-3754 9

She was even clearer in her memorandum in response to

Thomas’s motion to vacate the order entered by the probate

judge releasing her property from attachment. That order, she

explained, was entered in the 1997 case and had “absolutely

nothing to do with the new legal proceedings initiated by the

Estate of Emilia Piastowska [in 2011], which new proceedings

were summarily removed to federal Court.” She implored the

district judge to ignore Thomas’s “crafty pleading” and

insisted that the state judge’s postremoval order was valid

because it was entered in the 1997 case, not the 2011 case that

was the subject of her removal notice.

Whether Thomas’s motion was properly filed in the 1997

case is a question of state procedure, not federal law, and we

need not decide it. By voluntarily dismissing the “new action”

that Anna insisted she had removed, Thomas acquiesced inher

dubious characterization of his motion. At the time he filed his

notice of voluntary dismissal, everyone agreed that the 1997

case had not been removed. The caption of Anna’s removal

notice listed the 2011 probate-court case number—the file

Thomas had opened for the administration of his mother’s

estate—and the dismissal notice likewise identified the

removed case using the 2011 state-court case number.

Thomas’s acquiescence in Anna’s characterization of his

motion could not have suppliedthe federal court’s jurisdiction,

of course. Subject-matter jurisdiction cannot be created by

agreement. See, e.g., Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534, 541 (1986). But the district court doesn’t need

jurisdiction over a case for a voluntary dismissal under

Rule 41(a)(1)(A)(i) to be effective; the rule allows the plaintiff
10 No. 12-3754

to dismiss an action without court order by filing a notice of

dismissal before the opposing party files an answer or a motion

for summary judgment. See Nelson v. Napolitano, 657 F.3d 586,

587 (7th Cir. 2011) (explaining that a Rule 41(a)(1)(A) notice of

dismissal is self-executing and effective without further action

from the court); Smith v. Potter, 513 F.3d 781, 782–83 (7th Cir.

2008) (same); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,

409 (11th Cir. 1999) (explaining that a voluntary dismissal

“may precede any analysis of subject matter jurisdiction

because it is self-executing”). Thomas simply accepted Anna’s

characterization of the “new action” she said she had removed

and voluntarily dismissed it rather than continuing to fight

over the propriety of removal. 

Anna now argues that she couldn’t have removed the 2011

case because nothing had been filed against her underthat case

number. This argument conflicts with the position she took to

get the case into federal court in the first place. Thomas was

entitled to accept Anna’s initial assertion that she had removed

a “new action” filed in the 2011 case, however untenable that

assertion might have been. After he filed his notice of voluntary dismissal, it was too late for Anna to change course and

argue that she really had removed the 1997 case after all, which

would have been grossly untimely in any event.

Accordingly, Thomas’s voluntary dismissal under

Rule 41(a)(1)(A)(i) was effective and terminated the case.

AFFIRMED.