# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued September 3, 2008

Decided December 22, 2008

Before

RICHARD A. POSNER, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 05

‐ 1278

LIZABETH S. CANTU and Appeal from the United States

JUAN E. SOTO, District Court for the Southern

District of Indiana, Indianapolis Division.

Plaintiffs

‐ Appellants

,

v. No. 02 C 5635

BRIDGESTONE CORPORATION Sarah Evans Barker

, Judge

. and BRIDGESTONE FIRESTONE

NORTH AMERICAN TIRE, LLC,

Defendants

‐ Appellees

.

O R D E R

A.

In our study of the record in this case, we noted that, on December 28, 2005,

counsel for the appellants and counsel for the appellees had submitted a document to

the district court entitled “First Amended Agreed Motion to Dismiss with Prejudice as NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 05-1278 Page 2

1 Counsel for the settling plaintiffs is also Ms. Cantu and Mr. Soto’s counsel. to Defendants Firestone and Bridgestone.” R.43. This document, which lists explicitly

the present appellants, recites,

[a]ll matters in controversy between the Movants have been settled, and

consideration for the settlement has been paid in full. As part of the settlement,

Movants have agreed that the case against defendants Firestone and Bridgestone

Corporation (“Bridgestone”) should be dismissed with prejudice. All Movants

have further agreed that the dismissal with prejudice should extend to all claims

that could have been asserted against defendants Firestone and Bridgestone, as

well as all claims that actually were asserted against defendants Firestone and

Bridgestone in this case.

Id

.

We further noted that, on January 6, 2006, the district court had entered an order

dismissing this case with prejudice. This order specifically mentions in its caption the

appellants. R.45.

These documents suggest, on their face, that this case was settled by the parties

and dismissed by the district court on that basis. Accordingly, we requested that the

parties file with the court memoranda addressing why this appeal should not be

dismissed as moot.

The parties have filed their memoranda in response to our order. All parties

represent that the December 2005 motion reciting that Ms. Cantu and Mr. Soto had

settled their claims was erroneous. According to the parties, in December 2004, a select

group of plaintiffs, not including Mr. Soto or Ms. Cantu, settled with Bridgestone and

Firestone. However, the papers filed with the district court only mentioned Firestone.

In 2005, the district court brought to Firestone’s attention that it was unclear whether

this group of plaintiffs had settled against Bridgestone. Firestone’s counsel notified

counsel for all of the plaintiffs, including Ms. Cantu and Mr. Soto, of this development

on December 19, 2005. 1

The parties represent that, in an attempt to correct the error, counsel for

defendants prepared and submitted to counsel for the plaintiffs amended forms of a

motion, stipulation and order of dismissal to clarify that claims against BridgestoneNo. 05-1278 Page 3

2 Ms. Cantu and Mr. Soto do not explain how they did not have any notice, given their

counsel signed the amended stipulation of dismissal. were dismissed. The parties represent that these documents mistakenly purported to

dismiss with prejudice the claims of all plaintiffs, including Mr. Soto and Ms. Cantu.

The district court, acting on the parties’ agreed order and stipulation, then entered an

erroneous dismissal against all plaintiffs.

Ms. Cantu and Mr. Soto further submit that plaintiffs’ counsel did not receive a

copy of the amended order and did not learn of it until Spring 2007. 2 Failing to

recognize that this issue affects our jurisdiction and, therefore, cannot be waived, see

United States v. Mosley

, 967 F.2d 242, 243 (7th Cir. 1992), they further contend that

Bridgestone and Firestone have waived the issue of mootness.

All parties ask that the appeal not be dismissed as moot. Bridgestone and

Firestone alternatively request that the appeal be held in abeyance while the parties

seek to amend the order of dismissal.

B.

This case is not ready for a definitive decision by an appellate court. As the

parties suggest, the district court must first correct its order of January 2006 if its

recollection of the situation is the same as that of the parties. However, even if the

district court does determine that it erroneously included the parties now before us in

the January 2006 order, there is another more fundamental problem. In its present state,

the record does not reflect that the district court ever rendered a final decision in this

case with respect to the claims of Ms. Cantu and Mr. Soto. In its February 2004 decision,

the court dismissed these actions on forum non conveniens grounds, but only with

respect to the claims against Firestone and Ford Motor Company. Nothing was said

about the claims against Bridgestone. Nor was judgment entered against Ms. Cantu

and Mr. Soto pursuant to Federal Rule of Civil Procedure 58(a). The December 2004

order of the district court did not include Ms. Cantu and Mr. Soto, and, according to the

parties, their inclusion in the district court’s later January 2006 order was a scrivener’s

error.

Consequently, we must conclude that, with respect to the claims of Ms. Cantu

and Mr. Soto, the record does not establish that the district court ever rendered a finalNo. 05-1278 Page 4

decision with respect to the claims of these parties against all defendants. See 28 U.S.C.

§ 1291. Even under the parties’ account of the proceedings in the district court, the

district court has not disposed of the plaintiffs’ claims against Bridgestone.

C.

Until it is established that this case still presents a live controversy and until the

record affirmatively and definitively establishes that the district court has rendered a

final decision, we cannot proceed with this adjudication. Accordingly, we must remand

this case to the district court for further proceedings. First, the district court must

determine whether this case still presents a live controversy. To make this

determination, the court should review the record and the submissions of the parties

and determine definitively whether these parties settled their case or whether their

inclusion in the district court’s order of January 2006 was merely a scrivener’s error.

Second, if the district court determines that the case presents a live controversy, the

district court must treat the claims of Ms. Cantu and Mr. Soto as a pending case on its

docket until it renders a final decision.

We are aware of the significant workload confronting our colleague on the

district court. We nevertheless note that this case, for a variety of circumstances not

within the control of the district court, has awaited definitive review for a substantial

period of time. We respectfully request that the district court resolve this matter as

soon as possible.

When the district court renders a final decision, the parties may appeal once

again to this court. If they elect to appeal, they may do so without the payment of an

additional docketing fee, and the case shall be returned to this panel for adjudication.

Additional briefing will not be required unless this court specifically directs, either on

its own initiative or on motion of a party, that additional submissions be filed.

Accordingly, this appeal is dismissed for want of appellate jurisdiction. The

parties shall bear their own costs in this court. This court’s mandate shall issue

immediately.

IT IS SO ORDERED