Payne v. Brake , 439 F.3d 198 ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KELLY PAYNE, personal 
representative of the Estate of
Eduardo Calzada,
Plaintiff-Appellee,
v.
MARK BRAKE, Officer for the City
of Charlottesville; KELLY HARRISON,
Officer for the City of
Charlottesville; MARK GILLESPIE,
Officer for the County of
Albemarle; C. SCOTT MILLER,
Officer for the County of
Albemarle-Charlottesville Regional
Jail; FRANK JOHNSON, Sergeant for
the Albemarle-Charlottesville  No. 04-2348
Regional Jail; MICHAEL FEHL,
Sergeant for the Albemarle-
Charlottesville Regional Jail;
CHRISTOPHER A. BIBB, Officer for the
Albemarle-Charlottesville Regional
Jail; KEITH BAZEMORE, Officer for
the Albemarle-Charlottesville
Regional Jail; FRED KIRSCHNICK,
Officer for the Albemarle-
Charlottesville Regional Jail;
GERALD PATRICK KINLAW, Officer for
the Albemarle-Charlottesville
Regional Jail; EDDIE SHIFFLET,
Officer for the Albemarle-
Charlottesville Regional Jail;

2 PAYNE v. BRAKE
GARY FERLAND, Officer for the 
Albemarle-Charlottesville Regional
Jail; ASIBERIA IGBANI, Officer for the
Albemarle-Charlottesville Regional
Jail; JEROME HILL, Officer for the
Albemarle-Charlottesville Regional
Jail; PHILLIP BARFIELD, Officer for
the Albemarle-Charlottesville
Regional Jail; BILLY BINGLER,
Officer for the Albemarle-
Charlottesville Regional Jail; JOHN
WOODSON, Officer for the
Albemarle-Charlottesville Regional
Jail; SHEILA COLEY, Nurse for the
Albemarle-Charlottesville Regional
Jail; JOHN ISOM, Superintendent of
the Albemarle-Charlottesville 
Regional Jail, in his official and
individual capacities; ROBERT
BEATTY, Deputy Superintendent of
the Albemarle-Charlottesville
Regional Jail, in his official and
individual capacities; ALBEMARLE-
CHARLOTTESVILLE REGIONAL JAIL
AUTHORITY; ALBEMARLE-
CHARLOTTESVILLE REGIONAL JAIL
BOARD,
Defendants-Appellants,
and
CHERYL A. THOMPSON, Magistrate
for the 16th Judicial District,
Defendant.

PAYNE v. BRAKE 3
KELLY PAYNE, personal 
representative of the Estate of
Eduardo Calzada,
Plaintiff-Appellee,
v.
MARK BRAKE, Officer for the City
of Charlottesville; KELLY HARRISON,
Officer for the City of
Charlottesville; MARK GILLESPIE,
Officer for the County of
Albemarle; C. SCOTT MILLER,
Officer for the County of
Albemarle-Charlottesville Regional
Jail; FRANK JOHNSON, Sergeant for
the Albemarle-Charlottesville  No. 04-2356
Regional Jail; MICHAEL FEHL,
Sergeant for the Albemarle-
Charlottesville Regional Jail;
CHRISTOPHER A. BIBB, Officer for the
Albemarle-Charlottesville Regional
Jail; KEITH BAZEMORE, Officer for
the Albemarle-Charlottesville
Regional Jail; FRED KIRSCHNICK,
Officer for the Albemarle-
Charlottesville Regional Jail;
GERALD PATRICK KINLAW, Officer for
the Albemarle-Charlottesville
Regional Jail; EDDIE SHIFFLET,
Officer for the Albemarle-
Charlottesville Regional Jail;

4 PAYNE v. BRAKE
GARY FERLAND, Officer for the 
Albemarle-Charlottesville Regional
Jail; ASIBERIA IGBANI, Officer for the
Albemarle-Charlottesville Regional
Jail; JEROME HILL, Officer for the
Albemarle-Charlottesville Regional
Jail; PHILLIP BARFIELD, Officer for
the Albemarle-Charlottesville
Regional Jail; BILLY BINGLER,
Officer for the Albemarle-
Charlottesville Regional Jail; JOHN
WOODSON, Officer for the
Albemarle-Charlottesville Regional
Jail; SHEILA COLEY, Nurse for the
Albemarle-Charlottesville Regional
Jail; JOHN ISOM, Superintendent of
the Albemarle-Charlottesville 
Regional Jail, in his official and
individual capacities; ROBERT
BEATTY, Deputy Superintendent of
the Albemarle-Charlottesville
Regional Jail, in his official and
individual capacities; ALBEMARLE-
CHARLOTTESVILLE REGIONAL JAIL
AUTHORITY; ALBEMARLE-
CHARLOTTESVILLE REGIONAL JAIL
BOARD,
Defendants-Appellants,
and
CHERYL A. THOMPSON, Magistrate
for the 16th Judicial District,
Defendant.

PAYNE v. BRAKE 5
KELLY PAYNE, personal 
representative of the Estate of
Eduardo Calzada,
Plaintiff-Appellee,
v.
MARK BRAKE, Officer for the City
of Charlottesville; KELLY HARRISON,
Officer for the City of
Charlottesville; MARK GILLESPIE,
Officer for the County of
Albemarle; C. SCOTT MILLER,
Officer for the County of
Albemarle-Charlottesville Regional
Jail; FRANK JOHNSON, Sergeant for
the Albemarle-Charlottesville  No. 04-2357
Regional Jail; MICHAEL FEHL,
Sergeant for the Albemarle-
Charlottesville Regional Jail;
CHRISTOPHER A. BIBB, Officer for the
Albemarle-Charlottesville Regional
Jail; KEITH BAZEMORE, Officer for
the Albemarle-Charlottesville
Regional Jail; FRED KIRSCHNICK,
Officer for the Albemarle-
Charlottesville Regional Jail;
GERALD PATRICK KINLAW, Officer for
the Albemarle-Charlottesville
Regional Jail; EDDIE SHIFFLET,
Officer for the Albemarle-
Charlottesville Regional Jail;

6 PAYNE v. BRAKE
GARY FERLAND, Officer for the 
Albemarle-Charlottesville Regional
Jail; ASIBERIA IGBANI, Officer for the
Albemarle-Charlottesville Regional
Jail; JEROME HILL, Officer for the
Albemarle-Charlottesville Regional
Jail; PHILLIP BARFIELD, Officer for
the Albemarle-Charlottesville
Regional Jail; BILLY BINGLER,
Officer for the Albemarle-
Charlottesville Regional Jail; JOHN
WOODSON, Officer for the
Albemarle-Charlottesville Regional
Jail; SHEILA COLEY, Nurse for the
Albemarle-Charlottesville Regional
Jail; JOHN ISOM, Superintendent of
the Albemarle-Charlottesville 
Regional Jail, in his official and
individual capacities; ROBERT
BEATTY, Deputy Superintendent of
the Albemarle-Charlottesville
Regional Jail, in his official and
individual capacities; ALBEMARLE-
CHARLOTTESVILLE REGIONAL JAIL
AUTHORITY; ALBEMARLE-
CHARLOTTESVILLE REGIONAL JAIL
BOARD,
Defendants-Appellants,
and
CHERYL A. THOMPSON, Magistrate
for the 16th Judicial District,
Defendant.

PAYNE v. BRAKE 7
KELLY PAYNE, personal 
representative of the Estate of
Eduardo Calzada,
Plaintiff-Appellant,
v.
KELLY HARRISON, Officer for the
City of Charlottesville; MICHAEL
FEHL, Sergeant for the Albemarle-
Charlottesville Regional Jail;
CHRISTOPHER A. BIBB, Officer for the
Albemarle-Charlottesville Regional
Jail; KEITH BAZEMORE, Officer for
the Albemarle-Charlottesville
Regional Jail; EDDIE SHIFFLET,
Officer for the Albemarle-
Charlottesville Regional Jail; PHILLIP
BARFIELD, Officer for the
Albemarle-Charlottesville Regional  No. 04-2424
Jail,
Defendants-Appellees,
and
MARK BRAKE, Officer for the City
of Charlottesville; C. SCOTT MILLER,
Officer for the County of
Albemarle-Charlottesville Regional
Jail; MARK GILLESPIE, Officer for the
County of Albemarle; FRANK
JOHNSON, Sergeant for the
Albemarle-Charlottesville Regional
Jail; FRED KIRSCHNICK, Officer for
the Albemarle-Charlottesville
Regional Jail; GERALD PATRICK
KINLAW, Officer for the Albemarle-
Charlottesville Regional Jail;

8 PAYNE v. BRAKE
GARY FERLAND, Officer for the 
Albemarle-Charlottesville Regional
Jail; ASIBERIA IGBANI, Officer for the
Albemarle-Charlottesville Regional
Jail; JEROME HILL, Officer for the
Albemarle-Charlottesville Regional
Jail; BILLY BINGLER, Officer for the
Albemarle-Charlottesville Regional
Jail; JOHN WOODSON, Officer for the
Albemarle-Charlottesville Regional
Jail; SHEILA COLEY, Nurse for the
Albemarle-Charlottesville Regional
Jail; JOHN ISOM, Superintendent of
the Albemarle-Charlottesville 
Regional Jail, in his official and
individual capacities; ROBERT
BEATTY, Deputy Superintendent of
the Albemarle-Charlottesville
Regional Jail, in his official and
individual capacities; ALBEMARLE-
CHARLOTTESVILLE REGIONAL JAIL
AUTHORITY; ALBEMARLE-
CHARLOTTESVILLE REGIONAL JAIL
BOARD; CHERYL A. THOMPSON,
Magistrate for the 16th Judicial
District,
Defendants.

Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CA-02-75-3; CA-02-72-3; CA-02-78-3)
Argued: November 30, 2005
Decided: March 1, 2006
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
PAYNE v. BRAKE 9
Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Niemeyer and Judge Motz joined.
COUNSEL
ARGUED: Helen Eckert Phillips, Stanardsville, Virginia, for
Appellants/Cross-Appellees. Neal Lawrence Walters, Charlottesville,
Virginia, for Appellee/Cross-Appellant. ON BRIEF: Elisabeth M.
Ayyildiz, MORIN & BARKLEY, Charlottesville, Virginia; Patrick C.
Asplin, KEELER OBENSHAIN, P.C., Charlottesville, Virginia;
Cheryl V. Higgins, ST. JOHN, BOWLING & LAWRENCE, Char-
lottesville, Virginia, for Appellants/Cross-Appellees. Deborah C.
Wyatt, WYATT & ARMSTRONG, P.L.C., Charlottesville, Virginia,
for Appellee/Cross-Appellant.
OPINION
TRAXLER, Circuit Judge:
The district court dismissed this wrongful death action on statute
of limitations grounds, but dismissed it "without prejudice," in light
of a recent decision from the Virginia Supreme Court that effectively
revived the limitations period. The defendants appeal, claiming the
dismissal should have been with prejudice. The plaintiff cross-
appeals, arguing that the district court lacked subject matter jurisdic-
tion due to a flaw in the removal from state court and that the district
court abused its discretion in setting aside certain default judgments.
We affirm.
I.
This case involves peculiar procedural facts. In October 2000, just
prior to the expiration of the two-year limitations period, Kelly Payne
filed a wrongful death action in a Virginia state court as the personal
representative of Eduardo Calzada (the "First Action"). After almost
a year of inaction, Payne had not served any of the defendants with
process. One day before the time period for proper service expired,
10 PAYNE v. BRAKE
Payne filed a notice of voluntary dismissal or "nonsuit." However,
Payne failed to obtain a nonsuit order from the court as required by
Virginia law to toll the statute of limitations. See Va. Code Ann. 8.01-
229(E)(3) (2005). The First Action therefore remained "active" and
on the state court docket. Under Virginia law, had Payne received a
nonsuit order, she would have had an additional six months to re-file
her claim and remain within the statute of limitations. See id.
Payne apparently believed that her nonsuit was proper and that it
extended her limitations period. Thus, she re-filed her case in state
court in April 2002 (the "Second Action") against the currently named
defendants ("Defendants"). Defendants removed the action to district
court. It is the Second Action that is currently on appeal before this
court.
After Payne filed the Second Action, the defendants in the still-
active First Action asked the state court to dismiss the claims with
prejudice for failure to serve process. They also objected to the entry
of nonsuit. Recognizing her previous error, Payne then requested a
nonsuit order. The state court entered the order, but did so nunc pro
tunc, as though it had been entered on the day Payne thought she
requested it, October 22, 2001. The Virginia Supreme Court affirmed,
but ruled that the nonsuit order should not have been granted nunc pro
tunc. See Brake v. Payne, 597 S.E.2d 59, 64 (Va. 2004). Thus, on
remand, the state court entered an order of nonsuit on July 1, 2004,
effectively reviving the statute of limitations for six more months.
Payne therefore had until the end of 2004 to re-file her claims and
remain within the limitations period.
This left the Second Action in a sort of procedural limbo. Since the
date of the nonsuit had been moved from October 22, 2001, to July
1, 2004, the Second Action was technically filed after the limitations
period had ended, but before it was revived. Under these circum-
stances, the district court felt compelled to dismiss the case on statute
of limitations grounds. However, the district court was well aware
that the Virginia Supreme Court had effectively revived the limita-
tions period. The district court therefore found itself in the peculiar
position of dismissing a case as time-barred but realizing that a new,
later action would not be time-barred. As a result, the district court
PAYNE v. BRAKE 11
dismissed the case "without prejudice" pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.
Defendants appeal, claiming that the district court’s Rule 41(b) dis-
missal should have been with prejudice. Payne cross-appeals, arguing
that the district court lacked jurisdiction because of an improper
removal and that it abused its discretion by setting aside entries of
default against several Defendants.
We review de novo any legal interpretation of the scope of Rule 41
of the Federal Rules of Civil Procedure. See Marex Titanic, Inc. v.
The Wrecked & Abandoned Vessel, 2 F.3d 544, 545-46 (4th Cir.
1993). However, we consider decisions that fall within that scope for
an abuse of discretion. See Ballard v. Carlson, 882 F.2d 93, 95 (4th
Cir. 1989). For questions concerning removal to federal court, our
standard of review is de novo. See Lontz v. Tharp, 413 F.3d 435, 439
(4th Cir. 2005). Finally, we review for an abuse of discretion a district
court’s decision to set aside an entry of default. See Consolidated
Masonry & Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d
249, 251 (4th Cir. 1967).
II.
We first address Payne’s claim of improper removal. The removal
statute requires a "defendant or defendants desiring to remove any
civil action or criminal prosecution from a State court [to] file in the
district court of the United States for the district and division within
which such action is pending a notice of removal." 28 U.S.C.A.
§ 1446(a) (West 1994) (emphasis added). Payne argues that the dis-
trict court lacked subject matter jurisdiction because not all defen-
dants joined in the removal to federal court. We disagree.
Failure of all defendants to join in the removal petition does not
implicate the court’s subject matter jurisdiction. Rather, it is merely
an error in the removal process. As a result, a plaintiff who fails to
make a timely objection waives the objection. See 28 U.S.C.A.
§ 1447(c) (West Supp. 2005) (explaining that, after removal, any
"motion to remand the case on the basis of any defect other than lack
of subject matter jurisdiction must be made within 30 days"); Nolan
v. Prime Tanning Co., 871 F.2d 76, 78 (8th Cir. 1989) ("Procedural
12 PAYNE v. BRAKE
removal requirements, such as [failure of all defendants to join in
removal], are not jurisdictional, and thus a party may waive the right
to object to removal on these grounds.") (citing Loftin v. Rush, 767
F.2d 800, 805 (11th Cir. 1985); Leininger v. Leininger, 705 F.2d 727,
729 (5th Cir. 1983); and Fristoe v. Reynolds Metals Co., 615 F.2d
1209, 1212 (9th Cir. 1980)).
There is no dispute that the district court otherwise had jurisdiction
because of the violations of federal law Payne pled in her motion for
judgment. There is also no dispute that Payne failed to move for
remand within 30 days of the notice of removal. As such, Payne
waived her right to object to the removal on the grounds that all
defendants did not join in removal. The district court properly
retained jurisdiction over the Second Action.
III.
We now turn to Defendants’ argument that the district court should
have dismissed Payne’s claims with prejudice. Rule 41(b) states that
Unless the court in its order for dismissal otherwise speci-
fies, a dismissal under this subdivision and any dismissal not
provided for in this rule, other than a dismissal for lack of
jurisdiction, for improper venue, or for failure to join a party
under Rule 19, operates as an adjudication upon the merits.
Fed. R. Civ. P. 41(b) (emphasis added). The rule gives the district
court discretion to "otherwise specif[y]" that a dismissal is not "an
adjudication upon the merits," i.e., that it is a dismissal without preju-
dice. Id. We made this clear in Shoup v. Bell & Howell Co., 872 F.2d
1178 (4th Cir. 1989), when we ruled that a dismissal based upon a
ground not enumerated in the rule was an adjudication on the merits
because the district court "did not otherwise specify the dismissal to
be ‘without prejudice,’ and the [plaintiffs] failed to move the court . . .
to specify that the judgment was ‘without prejudice.’" Id. at 1180; see
also Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503
(2001) ("Rule 41(b) sets forth nothing more than a default rule for
determining the import of a dismissal (a dismissal is ‘upon the mer-
its,’ with the three stated exceptions, unless the court ‘otherwise spec-
ifies’).").
PAYNE v. BRAKE 13
Here, the district court’s order explicitly stated that the case was to
be dismissed without prejudice and provided clear reasons explaining
why this approach was appropriate. Namely, the district court was
understandably concerned that a dismissal with prejudice might some-
how deny on statute of limitations grounds any claim Payne might re-
file, despite the Virginia Supreme Court’s ruling giving Payne an
additional six months to re-file. Rule 41(b) gave the district court this
discretion, and, under these circumstances, we cannot say that the dis-
trict court abused it.
IV.
Finally, we address Payne’s claim that the district court abused its
discretion in setting aside the entries of default entered against various
Defendants. Rule 55 of the Federal Rules of Civil Procedure provides
that a court may, "[f]or good cause shown," set aside an entry of
default. Fed. R. Civ. P. 55(c). "The disposition of motions made under
Rule[ ] 55(c) . . . is a matter which lies largely within the discretion
of the trial judge and his action is not lightly to be disturbed by an
appellate court." Consolidated Masonry, 383 F.2d at 251.
When deciding whether to set aside an entry of default, a district
court should consider whether the moving party has a meritorious
defense, whether it acts with reasonable promptness, the personal
responsibility of the defaulting party, the prejudice to the party,
whether there is a history of dilatory action, and the availability of
sanctions less drastic. See id.; see also Lolatchy v. Arthur Murray,
Inc., 816 F.2d 951, 953 (4th Cir. 1987). The district court took these
considerations into account when ruling to set aside the entries of
default and, on this record, we cannot say that it abused its discretion.
V.
Because Payne waived any right she may have had to insist that all
defendants join in the removal, and because the district court did not
abuse its discretion by making its dismissal without prejudice or by
setting aside the entries of default, we affirm.
AFFIRMED