The only arguable flaw in the courts opinion is the absence of any choice of law discussion.
The court endorses the reasoning of the Fifth and Eighth Circuits in Phillips v. Ill. Cent. Gulf R.R., 874 F.2d 984 (5th Cir. 1989), and Metro. Fed. Bank v. W.R. Grace & Co., 999 F.2d 1257 (8th Cir. 1983).
In Metro. Fed. Bank, however, the court discussed choice of law. The plaintiff owned property in Minnesota and elsewhere. The Eighth Circuit held, as did the court in the case at bar, that a valid statute of limitations defense precludes voluntary dismissal.
However, it allowed voluntary dismissal as to the properties outside of Minnesota that may be subject to another states statute of limitations. The court avoided deciding the choice of law issue, but acknowledged it was relevant to whether the claims were extinguished or not. Metro Fed. Bank, 999 F.2d at 1263.
In Philips, there were three possible venues: Mississippi (6-year statute of limitations); Texas (2 years); and Louisiana (1 year). The case was originally filed in Texas, and then transferred to Louisiana, because of lack of jurisdiction over the defendant in Texas.
The Fifth Circuit discussed choice of law at some length, before holding the issue not relevant because there was no jurisdiction in Texas. The court held, Because the Texas district court lacked personal jurisdiction over the defendant, the Louisiana district court properly applied the Louisiana statute of limitations to this action arising from a Louisiana tort. Philips, 874 F.2d at 988.
Suppose the case at bar should never have been in a Wisconsin court in the first place, but Illinois was the proper venue and source of the governing law.
The court never discusses the issue. However, given the courts endorsement of the Fifth and Eighth Circuits reasoning, and those circuits recognition that choice of law is relevant, plaintiffs attorneys may be able to avoid the result in the case at bar in similar cases, by arguing that voluntary dismissal would not defeat any vested right, because the governing law is properly supplied by some state other than Wisconsin.
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David Ziemer can be reached by email.