                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________
                                  No. 07-3617
                                 _____________

Lonnie Strandlund,                      *
                                        *
            Plaintiff,                  *
                                        *
Christopher Holscher; Jeremiah          *
Brendsel, and Richard Krawiecki,        *
                                        *
            Plaintiffs - Appellants,    * Appeal from the United States
                                        * District Court for the
      v.                                * District of Minnesota.
                                        *
William Hawley; Brent Lindgren,         *
Mille Lacs County Sheriff, and          *
Mille Lacs County,                      *
                                        *
            Defendants - Appellees.     *
                                   ___________

                             Submitted: June 13, 2008
                                Filed: July 7, 2008
                                 ___________

Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Plaintiffs Lonnie Strandlund, Christopher Holscher, Jeremiah Brendsel, and
Richard Krawiecki brought this action under 42 U.S.C. §§ 1983 and 1988 against
Mille Lacs Sheriff Brent Lindgren, deputy William Hawley, and the county, alleging
violations of their constitutional rights and common law torts. Defendants moved for
summary judgment which was granted in part as to plaintiff Strandlund. Finding
insufficient commonality in respect to the claims of the other plaintiffs, the district
court dropped and dismissed them from the action pursuant to Fed. R. Civ. P. 21.
Subsequent to the final judgment entered in respect to Strandlund, the other original
plaintiffs filed this appeal. Appellants argue that the district court should have severed
their claims instead of dropping and dismissing them from the suit. We vacate the
district court's Rule 21 order and remand.

       The incidents giving rise to the action brought by the four plaintiffs took place
on three different occasions. The only common factor in each incident is an allegation
by each plaintiff that Deputy William Hawley had used excessive force in his official
capacity. Strandlund alleged that he was attending a street festival in July 2004 where
he observed his son in law on his knees surrounded by sheriff deputies. When
Strandlund stepped forward and asked what was going on, Hawley allegedly tackled
him from behind. Strandlund claims that he suffered a stiff neck for several weeks
and loss of sleep as a result of Hawley's assault. Holscher and Brendsel were arrested
by Hawley in May 2004 after riding all terrain vehicles on private property and then
hiding to avoid apprehension. They alleged that they suffered physical injuries when
Hawley ordered his police dog to bite and hold them and that he humiliated them by
forcing them to appear in public in only their underwear. Krawiecki alleged that in
November 2003 Hawley approached him outside his home for a suspected drinking
and driving violation, then punched him in the eye and directed his police dog to bite
and hold which resulted in permanent injury.

       Plaintiffs were all represented by the same attorney and brought their claims in
one lawsuit in federal district court, alleging violation of their constitutional rights
under 42 U.S.C. §§ 1983 and 1988 , as well as an array of state tort claims including
assault, battery, intentional infliction of emotional distress, and negligence in
selection, training, and supervision. Appellees moved for summary judgment and also
argued that the parties and their claims should be severed due to misjoinder. In an
order dated March 30, 2007, the district court granted partial summary judgment as
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to Strandlund's claims and dropped Holscher, Brendsel, and Krawiecki from the action
under Rule 21 for misjoinder. In dismissing them without prejudice, the court cited
the lack of a logical relationship between the alleged incidents, which had occurred
on separate dates and locations and involved different individuals other than Hawley.
It decided that no common question of law or fact existed in respect to the claims and
that it would be too confusing for a jury to be asked to make the individual factual
determinations for the different incidents. The district court ruled that

       [a]ccordingly, the parties' claims are hereby severed. Pursuant to Fed.
       R. Civ. P. 21, plaintiffs Christopher Holscher, Jeremiah Brendsel, and
       Richard Krawiecki are dismissed from this suit, as improperly joined;
       they may refile and proceed separately. In the event plaintiffs Holscher
       and Brendsel choose to refile, they may - but are not required to - do so
       in the same action.

In concluding, the district court ordered that part of Strandlund's suit could go forward
and "[p]ursuant to Fed. R. Civ. P. 21, the claims of [the three other] plaintiffs . . . are
hereby dropped from this case and dismissed without prejudice." It is not entirely
clear whether the district court intended to merely sever appellants' claims or whether
it sought to dismiss the parties from the suit. We interpret its summary statement at
the end of its order as dismissing the parties without prejudice, rather than severing
their claims.

       Several months later Strandlund and appellees settled their dispute, causing the
district court to dismiss his case with prejudice and to enter judgment accordingly on
October 11, 2007. On November 9, 2007, Holscher, Brendsel, and Krawiecki filed
this appeal. They do not argue that the district court erred in concluding that their
claims were misjoined, but instead contend that the district court erroneously applied
Rule 21 by ordering their claims dismissed rather than severed. Appellants submit
that the district court abused its discretion, contending that their dismissals caused
them to suffer substantial prejudice by leaving them effectively unable to refile since
the statute of limitations had run on many of their claims. Appellees assert that

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appellants failed to file a timely notice of appeal and urge us to reject their appeal. In
the alternative, appellees argue that the district court did not abuse its discretion by
dropping appellants from the suit pursuant to Rule 21 since misjoinder may be
remedied either by dropping parties on just terms or severing their claims.

       We first consider appellees' argument that the notice of appeal was untimely
filed. They contend that pursuant to Fed. R. App. P. 4(a)(1)(A), a notice of appeal had
to be filed within 30 days of the district court's March 30, 2007 order dropping the
plaintiffs. Appellees cite a number of cases for the proposition that the court's Rule
21 order created new independent actions for purposes of finality and appealability,
requiring notice of appeal within 30 days. See Reinholdson v. Minnesota, 346 F.3d
847, 850 (8th Cir. 2003) (Rule 21 severance creates separate actions and "a court may
render a final, appealable judgment in either one of the resulting two actions
notwithstanding the continued existence of unresolved claims in the other"); Gaffney
v. Riverboat Servs. of Indiana, Inc., 451 F.3d 424 (7th Cir. 2006) (Rule 21 severance
generally creates two discrete actions proceeding as separate suits for purpose of
finality and appealability); Acevedo-Garcia v. Monroig, 351 F.3d 547, 559 (1st Cir.
2003) (Rule 21 severance made district court verdict a final and appealable judgment).
The cases relied on by appellees indicate that a Rule 21 severance order merely severs
separate claims which are independently capable of final and appealable judgments;
these cases are inapposite to the question of whether appellants' appeal was timely.

       Appellants respond that they appropriately appealed from the district court's
October 11, 2007 entry of judgment, rather than its March 30, 2007 order, since under
28 U.S.C. § 1291 appellate jurisdiction is limited to appeals from final decisions of
the district courts. They submit that a final judgment in actions involving multiple
claims or multiple parties arises only "upon an express direction for the entry of
judgment. In the absence of such determination or direction, any order . . . which
adjudicates fewer than all the claims . . . of fewer than all the parties shall not
terminate the action as to any of the claims or parties . . ." Fed. R. Civ. P. 54(b).
Since there was no Rule 54(b) determination in this case, appellants argue that they
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had to await the district court's entry of judgment on October 11, 2007 before filing
their appeal, as there was no other court document that could be construed as a final
judgment in the case. See Reinholdson, 346 F.3d at 849 (order is a final judgment if
it unequivocally ends litigation on merits and leaves nothing for court to do but
execute the judgment). In Reinholdson, we construed a severance of claims under a
Fed. R. Civ. P. 42(b) framework,1 rather than under Rule 21, and concluded that the
district court's severance rulings were interlocutory and not appealable. See 346 F.3d
at 849-50 (no clearly discernable final judgment had been entered from which to
appeal notwithstanding an order entitled "Judgment in a Civil Case" severing a
number of parties who were directed to refile in separate actions).

       We agree with appellants that their notice of appeal was timely because it came
within 30 days of the district court's entry of judgment in this case on October 11,
2007. While the district court's ultimate order for judgment arose out of the settlement
between Strandlund and appellees, that judgment also closed the case of which
appellants had originally been part. No judgment had been entered following the
district court's March 30, 2007 dismissal order, and the October 11, 2007 entry of
judgment was a final judgment from which the dropped appellants can appeal.
Appellants would have been able to avoid the arguments pertaining to the timeliness
of their appeal had they requested certification by the district court of a final judgment
of dismissal under Rule 54(b).2 With such an order they could then have


      1
        Rule 42(b) authorizes the district court to separate a single action into separate
components without dividing them into separate cases. Orders in such cases are often
interlocutory because a final and appealable judgment cannot be entered until all
controlling issues have been decided.
      2
        Rule 54(b), which addresses a judgment on multiple claims or involving
multiple parties, states that "when an action presents more than one claim for relief .
. . or when multiple parties are involved, the court may direct entry of final judgment
as to one or more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay. Otherwise, any order or other
decision . . . that adjudicates fewer than all the claims or the rights and liabilities of
                                           -5-
appealed the district court's March 2007 order without having to wait for the entry of
judgment in October 2007.

       We review the district court's order dismissing appellants for misjoinder under
an abuse of discretion standard. See Reinholdson, 346 F.3d at 850. Rule 21 provides
that "[m]isjoinder of parties is not a ground for dismissing an action. On motion or
on its own, the [district] court may at any time, on just terms, add or drop a party. The
court may also sever any claim against a party." The question is whether in this case
the district court was permitted to drop appellants from the case or whether it should
merely have severed their claims.

        Both the Third and Seventh Circuits have interpreted Rule 21 to permit
dismissals of parties only if they do not cause "gratuitous harm to the parties," Elmore
v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000), for the "discretion delegated to
the trial judge to dismiss under Rule 21 is restricted to what is 'just.'" DirectTV, Inc.
v. Leto, 467 F.3d 842, 845 (3d Cir. 2006).

        DirectTV involved an action brought by a cable company against several
consumers for illegal interception of its transmissions. 467 F.3d at 843. After the
district court initially severed the claims under Rule 21 and ordered that they proceed
as separate individual actions, DirectTV paid individual filing fees and filed a separate
complaint against one of the defendants. Id. at 844. That defendant successfully
moved to dismiss on the ground that the new complaint fell outside the statute of
limitations and in the course of reversing the dismissal, the Third Circuit commented
that "[a]lthough a district court has discretion to choose either severance or dismissal
in remedying misjoinder, it is permitted under Rule 21 to opt for the latter only if 'just'
– that is, if doing so 'will not prejudice any substantial right.'" DirectTV, 467 F.3d at
846 (citation omitted) (emphasis in original). The court explained that substantial


fewer than all the parties does not end the action as to any of the claims or
parties . . ."
                                     -6-
rights would be prejudiced if dismissal of misjoined parties were to result in the loss
of otherwise timely claims. Id. at 846-47.

        In the Seventh Circuit's Elmore decision, Judge Posner similarly concluded for
the panel that "the district court is duty-bound to prevent [statute of limitations]
consequences by severing rather than dismissing claims" under Rule 21 for
misjoinder. 227 F.3d at 1012. In that case, plaintiff and two other persons had filed
suit against the Postal Service within the 90 day statute of limitations period, but the
district court dismissed two of them without prejudice for misjoinder pursuant to Rule
21. Id. at 1010-11. Plaintiff did not appeal his Rule 21 dismissal nor did he ask the
district court for a final, immediately appealable judgment pursuant to Rule 54(b), but
instead waited four months to refile notwithstanding the 90 day statute of limitations.
Id. at 1012-13. The appellate court held that since the district court is required under
Rule 21 to add or drop parties on just terms and is allowed to sever a misjoined party's
claim rather than dismiss it, the district court could and should have permitted the
plaintiff's claim to continue as a separate suit so that it would not have been time
barred. Id. at 1012. The Seventh Circuit concluded that in cases of Rule 21
dismissals, the statute of limitations runs from whenever the cause of action accrued
so that "[a] suit dismissed without prejudice is treated for statute of limitations
purposes as if it had never been filed." Id. at 1011. The court therefore treated the
refiled action as time barred. Id. at 1012-13. The proper remedy to attack a district
court's erroneous dismissal under Rule 21 is to appeal, rather than to risk the running
of the statute of limitations. Id.

       Applying these principles we conclude that the district court abused its
discretion by its order apparently dismissing appellants without prejudice. The statute
of limitations for claims brought under 42 U.S.C. § 1983 is generally the applicable
state law period for personal injury torts. City of Rancho Palos Verdes, Cal. v.
Abrams, 544 U.S. 113, 124 n.5 (2005). In Minnesota intentional personal injury torts
such as assault, battery, or intentional infliction of emotional distress are governed by
a two year statute of limitations period, see Minn. Stat. § 541.07(1), while a six year
                                             -7-
limitations period applies to torts of negligence such as negligent hiring and retention.
See Minn. Stat. § 541.05, subd. 1(5). Since the events giving rise to appellants' claims
took place in 2003 and 2004, the statute of limitations on many of their constitutional
claims and personal injury allegations would appear to have already run at the time
of the district court’s March 2007 Rule 21 order. While it would have been
permissible to sever their claims into separate actions because of the need to avoid
possible confusion or substantial prejudice, the district court was not permitted to drop
and dismiss appellants pursuant to Rule 21. See DirectTV, 467 F.3d at 844
(substantial prejudice would arise if the suit was dismissed since statute of limitations
had run). While the district court's dismissal made it impossible for appellants to
refile many of their claims in light of the running of the limitations period, a severance
of their claims under Rule 21 would have held the statute of limitations in abeyance
and thus permitted them to proceed with individual actions since the lawsuit was
initially filed within the statute of limitations period. See id. at 845.

       Accordingly, we vacate the district court's Rule 21 order pertaining to the three
appellants. In order to allow consideration of all their claims, we remand to the
district court with instructions to sever appellants' claims as opposed to dismissing the
parties. We leave to the district court’s discretion whether to consolidate the claims
of appellants Holscher and Brendsel in one suit or to sever the claims into three
lawsuits.
                             _________________________




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