                                  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 Proce-
dure. 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 clear that 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 termi-
nated. 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 for removal 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
her property 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 postremov-
al 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’ under the 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. Com-
pletely 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 volun-
tary 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 Defen-
       dant was filed on December 19, 2011. …
       It is the Plaintiff which has opened an estate …
       creating a new entity with its own case num-
       ber. … [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 in her
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 supplied the 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 under that 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 volun-
tary 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.
