Œ American Cyanamid Company and Lederle Laboratories

were the original named defendants. We have adjusted the

caption for reasons explained at note 3, infra.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2072

CHARLES PRICE,

Plaintiff-Appellant,

v.

WYETH HOLDINGS CORPORATION,

Œ

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 04 C 242—Phillip P. Simon, Judge.

____________

ARGUED DECEMBER 4, 2006—DECIDED SEPTEMBER 20, 2007

____________

Before EASTERBROOK, Chief Judge, and CUDAHY and

SYKES, Circuit Judges.

SYKES, Circuit Judge. Charles Price voluntarily dismissed his Indiana state-court lawsuit against American

Cyanamid Company and Lederle Laboratories in 1993.

Unbeknownst to the defendants, Price then reinstated the

suit five years later and obtained a $5 million default

judgment from the state court. Price’s attorney gave the

defendants no notice of these proceedings until he sought
2 No. 06-2072

to collect on the judgment in 2004, at which point the

defendants quickly removed the case to federal court and

had the default judgment vacated based on the lack of

notice. The district court ultimately granted summary

judgment for the defendants dismissing Price’s claim on

statute of limitations grounds.

Price has appealed, challenging the removal of the

action and the district court’s orders granting relief from

the default judgment and summary judgment for the

defendants. Price’s attorney takes the extraordinary

position that his ex parte reinstatement of the lawsuit

was perfectly appropriate under Indiana law. It certainly

was not. The defendants were entitled to notice of the

motion to reinstate and all subsequent proceedings under

Indiana’s trial procedure rules; ex parte conduct of this

sort also violates Indiana’s Rules of Professional Conduct

for attorneys. We affirm the orders of the district court

and order Price’s attorney to show cause why he should

not be sanctioned for filing this frivolous appeal. We also

direct the clerk of this court to transmit a copy of this

opinion to the Indiana Supreme Court Disciplinary Commission for any action it deems appropriate.

I. Background

On June 10, 1993, Cathy and Charles Price filed suit

in Indiana state court against American Cyanamid Company and Lederle Laboratories (a division of American

Cyanamid) after Cathy contracted polio from a child who

recently had been vaccinated. Cathy’s claim was based on

product liability, and Charles’s claim was for loss of

consortium. The summons and complaint were served by

certified mail on June 14, 1993, and a return of service

was entered for American Cyanamid on June 23, 1993. On

June 25, 1993, the manager of American Cyanamid’s legal

department faxed a letter to plaintiffs’ counsel, Delmar
No. 06-2072 3

1 See, e.g., Shafer v. Am. Cyanamid, 20 F.3d 1 (1st Cir. 1994)

(Vaccine Act does not apply to derivative claims).

Kuchaes, informing him that the National Childhood

Vaccine Injury Act, 42 U.S.C. § 300aa-1 et seq., requires

that vaccination claims first be brought in the U.S. Court

of Federal Claims (“Vaccine Court”) pursuant to the

federal vaccination compensation program. The letter

provided plaintiffs’ counsel with the telephone number

and mailing address of the federal program and asked

that the lawsuit be terminated as required by the Act.

After receiving the facsimile letter, plaintiffs’ counsel

voluntarily dismissed the suit that same day, before

either defendant filed an appearance or responsive pleading. Plaintiffs’ counsel sent American Cyanamid a copy of

the dismissal order, along with a letter stating that the

suit had been “discontinue[d], or non-suit[ed].”

Over the next few years, the Prices pursued their claims

in the Vaccine Court, where they ultimately learned that

Charles’s derivative claim was not compensable under the

Vaccine Act.1

 Accordingly, in March 1998, Charles voluntarily dismissed his claim in the Vaccine Court. Cathy

subsequently obtained a judgment from the Vaccine

Court in excess of $1 million. On July 17, 1998, the Prices

moved to reinstate their state-court action, but they

did not provide any notice of that motion to the defendants. The state court reinstated the case on July 20, 1998,

again without notice to either defendant. For the next

year and a half, no effort was made to notify the defendants of the reinstated state-court proceedings.

On April 11, 2000, Charles Price filed motions for default judgment against the defendants, stating that

process had been served in June 1993 and the defendants

had subsequently failed to appear or respond; the motions said nothing about the circumstances of the volun-
4 No. 06-2072

2 Cathy Price voluntarily dismissed her state-court claim on

June 16, 2000, the day of the damages hearing, pursuant to a

Vaccine Act provision prohibiting a person from seeking additional recovery in state court if that party accepts an award from

the Vaccine Court.

3 We note that the defendants’ Circuit Rule 26.1 Disclosure

Statement and Jurisdictional Statement both state that Ameri-

(continued...)

tary dismissal and were not served on the defendants. The

court entered default judgments against the defendants

on April 26, 2000, and scheduled an evidentiary hearing

on damages. At that point, the court (not Price’s attorney)

forwarded a notice of the damages hearing to Lederle

Laboratories at the address on the original summons

served in 1993. On July 7, 2000, the notice was returned

to sender, stating “no such office in state.” As it turned

out, the address on the original summons had incorrectly attributed Lederle’s New York address to New

Jersey, but the post office had delivered it to the New York

address anyway, presumably based on the New York zip

code. Price’s attorney made no attempt to notify Lederle

or American Cyanamid of the reinstated proceedings, the

default judgment motions, or the damages hearing. The

hearing went forward on June 16, 2000, and the court

awarded $5 million to Charles Price.2

The default judgments languished in state court for

approximately four years until Price initiated garnishment proceedings on June 1, 2004. At that time, Price

provided the state court with a new address at which to

serve the defendants, that of the registered agent for

American Cyanamid and Lederle. Process for the garnishment proceedings was served on June 14, 2004, marking

the first time since June 23, 1993, that the defendants

received any notice of the proceedings that were taking

place in Indiana state court.3
No. 06-2072 5

3 (...continued)

can Cyanamid is now known as Wyeth Holdings Corporation, and

their brief indicates that a garnishment summons was served

on the registered agent for Wyeth Holdings Corporation. We also

note that Lederle Laboratories, as a division of American

Cyanamid (now Wyeth Holdings Corporation), has no juridical

existence and can neither sue nor be sued. See Schiavone v.

Fortune, 477 U.S. 21, 23 (1986). Accordingly, it appears that

Wyeth Holdings Corporation is the appropriate defendant. We

have adjusted the caption accordingly, but for ease of reading

will continue to refer to the defendants in the plural.

On June 22 the defendants jointly filed a notice of

removal to federal court and the case was removed. Price

challenged the removal as untimely and sought a remand

to state court. The district court denied remand, holding

that the removal was timely because the defendants

had no notice that the previously dismissed case had been

reinstated until a week before they sought removal. The

district court then vacated the default judgments due to

Price’s failure to comply with notice requirements under

Indiana law. The defendants moved for summary judgment on statute of limitations grounds; the district court

granted the motion, holding that the two-year statute of

limitations had expired during the intervening years

between the voluntary dismissal and the reinstatement of

the lawsuit. Price now appeals the denial of his remand

motion, the order vacating the default judgments, and the

grant of summary judgment for the defendants.

II. Discussion

A. Timeliness of Removal

We review a district court’s denial of a motion to remand

to state court de novo. Tifft v. Commonwealth Edison Co.,

366 F.3d 513 (7th Cir. 2004). Price’s claim was removable
6 No. 06-2072

4 Price’s attorney attempted to argue to the contrary during oral

argument, but eventually admitted he had conceded this point

both in district court and in his appellate brief.

based on diversity of citizenship.4 28 U.S.C. §§ 1332(a),

1441(a). Price argues that the removal was not timely

under two provisions of 28 U.S.C. § 1446(b). Because

federal procedure does not apply until removal occurs,

FED. R. CIV. P. 81(c), we apply state rules to preremoval

conduct. Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119,

1122 (7th Cir. 2001).

1. The 30-Day Removal Clock

Price first invokes the time limit in 28 U.S.C. § 1446(b),

which requires a defendant to file for removal within 30

days of receiving the initial pleading setting forth the

claim for relief (or receipt of the summons if the initial

pleading is not required to be served). Price argues that

this period expired 30 days after the defendants received the complaint in 1993, even though the case was

voluntary dismissed two weeks after it was filed. He

claims that under Indiana law, a lawsuit is not actually

terminated when it is voluntarily dismissed, but rather

remains pending indefinitely until such time as the

plaintiff may seek reinstatement. He bases this argument

on the distinction between a “cause of action” and a “cause”

in Indiana law; a “cause” refers to a lawsuit, whereas a

“cause of action” refers to an individual theory of liability

within a “cause.” See e.g., Songer v. Civitas Bank, 771

N.E.2d 61, 66-67 (Ind. 2002). Price maintains that he

voluntarily dismissed only his “cause of action” in 1993; he

insists that his “cause” remained pending (emptied, as it

were, of its “cause of action”), and the 30-day removal clock

kept on ticking and expired.
No. 06-2072 7

What utter nonsense. To the extent there is a difference

between a “cause” and a “cause of action” under Indiana

law, that difference is completely irrelevant here. Songer

defined these terms in the context of determining whether a single lawsuit containing both legal and equitable

claims required a jury trial; the case neither involved nor

made any mention of voluntary dismissals. See id. at 66.

Price cannot identify a single case supporting the notion

that a voluntary dismissal terminates the “cause of action”

but not the “cause.” This is undoubtedly because the

idea is so ridiculous; a “cause” (that is, lawsuit) cannot

continue to exist once every “cause of action” within it has

been dismissed. The Prices’ voluntary dismissal terminated the entire case against the defendants. The “cause”

did not remain pending, nor did the removal clock continue to run after the voluntarily dismissal.

Based on this same theory of a continuously pending

lawsuit, Price also maintains that the defendants had

a duty to continuously check the docket and therefore

should be charged with constructive notice of the reinstated proceedings. This argument badly misconstrues

basic principles of voluntary dismissal under Indiana law.

“[O]nce a suit is voluntarily dismissed[,] the situation is

just as though the suit has never been filed.” Burnett v.

Camden, 254 N.E.2d 199, 201 (Ind. 1970). A voluntarily

dismissed suit may be reinstated pursuant to Rule 41(F) of

the Indiana Rules of Trial Procedure, and “[w]hen a case

is dismissed and then reinstated, it stands as if it had

not been dismissed.” Waitt v. Waitt, 429 N.E.2d 6, 7 (Ind.

App. 1981) (holding that a party who failed to move for

a change of venue within 30 days of receiving the initial

complaint was not entitled to a new 30-day time limit

when the case was reinstated after voluntary dismissal).

Accordingly, although the procedural obligations of the

parties pick up exactly where they left off once a voluntarily dismissed action is validly reinstated, the defen-
8 No. 06-2072

5 The American Cyanamid return of service lacks a date of

delivery, so it is unclear precisely when the defendant first

received the complaint and summons. However, the summons

states that it was mailed on June 14, 1993, and even assuming it

was delivered that same day, only 11 days would have passed by

June 25. The Lederle Laboratories return of service indicates

that it was delivered June 24, 1993. 

dants obviously have no ongoing obligations during the

time in which the suit is dismissed. Upon reinstatement,

the notice rights and duties of the parties depend upon

the position the parties were in when the action was

voluntarily dismissed. Price’s theory of constructive

notice is unsupported and unsupportable; the defendants

were entitled under Indiana law to actual notice of the

motion for reinstatement and all subsequent pleadings.

The Indiana Rules of Trial Procedure require a party

to serve notice of all pleadings and motions on any party

who is not in default. IND. R. TRIAL P. 5(A). The record

establishes that the defendants could have been in possession of the complaint for no more than 11 days at the

time it was voluntarily dismissed.5

 This is well within

the 23 days which Indiana allows a defendant served by

mail to file an appearance or answer. No default could

have been entered against either defendant prior to

dismissal; the defendants were in good standing when the

case was voluntarily dismissed and thus were in good

standing when it was reinstated. Price therefore had a

duty under Rule 5(A) of the Indiana Rules of Trial Procedure to serve the motion to reinstate on the defendants—a

duty that his counsel apparently deliberately ignored.

Price cites Lyerson v. Hogan, 441 N.E.2d 683 (Ind. Ct.

App. 1982), but that case involved neither a voluntary

dismissal nor a defendant in good standing. Lyerson

involved a lawsuit that languished for two years with-
No. 06-2072 9

out an appearance or answer by the defendants and

without any activity from the plaintiffs. The court dismissed the case for failure to prosecute; the plaintiffs

orally moved to reinstate without notifying the defendants.

The Court of Appeals of Indiana held that no notice

was necessary in these circumstances because the defendants were in default at the time the case was dismissed.

Id. at 686. The court cited a provision in Rule 5(A) of the

Indiana Rules of Trial Procedure that excludes parties

in default from the notice requirement unless the pleading asserts new or additional claims for relief. Id. Rather

than supporting Price’s position, Lyerson thus confirms

that parties not in default at the time of dismissal must

be served with the motion for reinstatement.

The record demonstrates that the defendants did not

receive notice of the reinstated lawsuit until June 14,

2004, when they were served with process in the garnishment proceedings. They sought removal eight days later,

well within the 30-day limit even when the 11 days from

June 1993 are counted. Accordingly, removal was timely,

and the district court properly denied the motion to

remand.

2. The One-Year Removal Limit in Diversity Cases

Price also seeks refuge in the one-year limitation found

in the second paragraph of § 1446(b). Section 1446(b)

provides:

The notice of removal of a civil action or proceeding

shall be filed within thirty days after the receipt by

the defendant, through service or otherwise, of a copy

of the initial pleading setting forth the claim for relief

upon which such action or proceeding is based, or

within thirty days after the service of summons upon

the defendant if such initial pleading has then been
10 No. 06-2072

6 Although not necessary to our decision here, we note that every

circuit to have considered the question (albeit in very different

procedural contexts) has held that the one-year bar is applicable

(continued...)

filed in court and is not required to be served on the

defendant, whichever period is shorter.

If the case stated by the initial pleading is not

removable, a notice of removal may be filed within

thirty days after receipt by the defendant, through

service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may

first be ascertained that the case is one which is or has

become removable, except that a case may not be

removed on the basis of jurisdiction conferred by

section 1332 of this title more than 1 year after commencement of the action.

(Emphasis added.) Price claims that the emphasized

language prevents removal in all diversity cases more

than one year after the case was commenced; the defendants counter that the one-year bar applies only to cases

that were not removable when initially filed.

The most obvious problem with Price’s argument is

that it rests on the illogical premise we have already

rejected: that the removal clock somehow continues to run

after a lawsuit has been voluntarily dismissed. It goes

without saying that a dismissed case cannot be removed;

removal time limits do not continue to run after a case has

been dismissed. The Prices voluntarily dismissed their

lawsuit two weeks after it was filed, and their counsel

failed—intentionally, it seems—to give the defendants

notice of its reinstatement. The defendants filed for

removal eight days after first receiving service of any sort

of notice of the reinstated lawsuit. This is well within the

one-year bar, even assuming it has any relevance here.6
No. 06-2072 11

6 (...continued)

to cases that are not initially removable. See Brown v. Tokio

Marine & Fire Ins. Co., 284 F.3d 871, 873 (8th Cir. 2002); Brierly

v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir.

1999), cert. denied, 528 U.S. 1076, (2000); N.Y. Life Ins. Co. v.

Deshotel, 142 F.3d 873, 886 (5th Cir. 1998); Ritchey v. Upjohn

Drug Co., 139 F.3d 1313, 1316-17 (9th Cir.), cert. denied, 525 U.S.

963 (1998). The clause containing the one-year bar is part of the

paragraph specifically addressing the time limits for cases that

are not initially removable; its placement in this paragraph

indicates that it modifies only the immediately preceding

language in the same paragraph, not the more general time

limitation contained in the preceding paragraph. 

Before moving on, we pause to emphasize the absurdity

of Price’s arguments about the timeliness of the removal.

Neither the language of nor the purposes behind the

time limits contained in § 1446(b) could possibly support

a reading that the limits run against defendants who are

unaware of the pending claim. See 28 U.S.C. § 1446(b)

(removal shall be sought within 30 days of receipt of the

complaint or within 30 days of receiving the first removable pleading) (emphasis added); Murphy Bros., Inc. v.

Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999) (“An

individual or entity named as a defendant is not obliged

to engage in litigation unless notified of the action, and

brought under a court’s authority, by formal process.”);

Wilson v. Intercollegiate (Big Ten) Conference Athletic

Ass’n, 668 F.2d 962, 965 (7th Cir. 1982) (“The purpose of

the 30-day limitation is twofold: to deprive the defendant

of the undeserved tactical advantage that he would have

if he could wait and see how he was faring in state court

before deciding whether to remove the case to another

court system; and to prevent the delay and waste of

resources involved in starting a case over in a second

court after significant proceedings, extending over months

or even years, may have taken place in the first court.”).
12 No. 06-2072

That an attorney could in good faith expect to prevail on

such baseless arguments is difficult to fathom.

B. Default Judgment

Price next challenges the district court’s order granting

the defendants’ motion to vacate the default judgments

pursuant to Rule 60(b) of the Federal Rules of Civil

Procedure. Although relief under Rule 60(b) is subject to

review for abuse of discretion, if a “judgment is void, it

is a per se abuse of discretion for a district court to deny

a movant’s motion to vacate the judgment.” United States

v. Indoor Cultivation Equip. from High Tech Indoor

Garden Supply, 55 F.3d 1311, 1317 (7th Cir. 1995). A

judgment is void and should be vacated pursuant to

Rule 60(b)(4) if “the court that rendered the judgment

acted in a manner inconsistent with due process of law.”

Id. at 1316 (citations omitted); see also Ervin v. Wilkinson,

701 F.2d 59, 61 (7th Cir. 1983) (“Where the moving

party has been prevented from presenting the merits of

his case by the conduct of which he complains, Rule 60(b)

relief is most appropriate.”). In determining whether

relief under Rule 60(b) is appropriate, “federal courts

may apply state procedural rules to pre-removal conduct.”

Romo, 250 F.3d at 1122.

As we have noted, Rule 5(A) of the Indiana Rules of

Trial Procedure requires that all parties not in default be

served with any motions or pleadings filed with the court.

The defendants were not in default, yet Price’s attorney

did not provide them with notice of the motion to reinstate the lawsuit, the motions for default judgment, or

any other proceedings that occurred subsequent to

reinstatement—that is, until collection was attempted

with the commencement of garnishment. Moreover, the

Supreme Court of Indiana has held that an attorney has

a duty under the Indiana Rules of Professional Conduct
No. 06-2072 13

7 Price also contends that the district court was barred from

vacating the judgment by a one-year time limitation found in

Rule 60(b), but this limit only applies to relief based upon

60(b)(1)-(3). Because this judgment was vacated under

Rule 60(b)(4), the one-year limit is inapplicable. 

to provide any known counsel with a motion for default

before allowing entry of a default judgment; failure to

comply with that duty requires relief from the judgment.

Smith v. Johnston, 711 N.E.2d 1259, 1264 (Ind. 1999) (“A

default judgment is appropriate only where a party has

not appeared in person or by counsel and, if there is a

lawyer known to represent the opposing party in the

matter, counsel had made reasonable effort to contact

that lawyer.”); see also IND. R. PROF. COND. 3.3(d), 3.5(b),

8.4(d). As is clear from the 1993 correspondence in the

record, Price’s attorney knew the defendants had legal

representation, yet he made no effort to inform either the

defendants or known counsel that the default proceedings were occurring. Because the default judgments failed

to comply with these requirements of Indiana law, they

were void; the district court was therefore required to

vacate the judgments, making this appeal of its order

doing so frivolous.7

C. Summary Judgment

We review the district court’s entry of summary judgment de novo, viewing the facts in the light most favorable

to Price. See Healy v. City of Chicago, 450 F.3d 732, 738

(7th Cir. 2006). Summary judgment is appropriate when

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as

a matter of law.” FED. R. CIV. P. 56(c).
14 No. 06-2072

8 Although Indiana law contains a provision that permits a

plaintiff to refile a dismissed claim despite the expiration of the

statute of limitations, that provision does not apply to voluntarily

dismissed cases. See Morris v. Jenkins, 819 F.2d 678 (7th Cir.

1987) (applying Indiana law); Al-Challah v. Barger Packaging,

820 N.E.2d 670 (Ind. Ct. App. 2005); Ferdinand Furniture Co.,

Inc. v. Anderson, 399 N.E.2d 799 (Ind. Ct. App. 1980). Moreover,

that provision requires that applicable cases be refiled within

three years of dismissal, which Price’s claim was not. See IND.

CODE 34-11-8-1.

The statute of limitations in Indiana for loss-of-consortium claims is two years. The district court concluded

that the latest possible date on which Price’s claim accrued

is February 3, 1992, making his July 1998 attempted

reinstatement of the claim more than four years too

late. In hopes of circumventing this time bar, Price first

maintains that the filing date for his reinstated claim

relates back to the initial filing of his case in 1993. To

the contrary, under Indiana law, “a voluntary dismissal

does not warrant a statutory tolling of the ordinarily

applicable limitations period.” Morris v. Jenkins, 819

F.2d 678, 681 (7th Cir. 1987) (applying Indiana law); see

also Al-Challah v. Barger Packaging, 820 N.E.2d 670, 675

(Ind. Ct. App. 2005) (“A complaint that is voluntarily

dismissed is treated as if it never existed and, thus, cannot

toll the statute of limitations.” (citing Kohlman v.

Finkelstein, 509 N.E.2d 228, 232 (Ind. Ct. App. 1987))).8

Price next contends that the statute of limitations was

tolled when he filed with the Vaccine Court in July 1994.

But this was five months after the two-year limitations

period had expired (the claim accrued no later than

February 3, 1992). Because no intervening occurrence

tolled the two-year statute of limitations, the district

court properly concluded that his claim was barred under

Indiana law.
No. 06-2072 15

III. Conclusion

For the foregoing reasons, we affirm the district court’s

orders denying remand, vacating the default judgments,

and dismissing Price’s claim on statute of limitations

grounds. Price’s attorney, Delmar Kuchaes, is ordered to

show cause why he should not be sanctioned for filing a

frivolous appeal. See FED. R. APP. P. 38. He has 21 days to

file a response. We also direct the clerk of this court to

transmit a copy of this opinion to the Indiana Supreme

Court Disciplinary Commission for any action it deems

appropriate.

AFFIRMED, WITH ORDER TO SHOW CAUSE AND

DIRECTIONS TO CLERK.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-20-07