Wilson & Co. v. Fremont Cake & Meal Co., Civ. No. 73-47.

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Writing for the CourtDELEHANT
Citation83 F. Supp. 900
Decision Date01 April 1949
Docket NumberCiv. No. 73-47.

83 F. Supp. 900

WILSON & CO., Inc.

Civ. No. 73-47.

United States District Court D. Nebraska, Omaha Division.

March 26, 1949.

On Motion Staying Further Proceeding April 1, 1949.

83 F. Supp. 901

Yale C. Holland and Kennedy, Holland, DeLacy & Svobeda, all of Omaha, Neb., for plaintiff.

Maxwell V. Beghtol, J. Lee Rankin, John C. Mason, and Kenneth E. Anderson and Beghtol & Rankin, all of Lincoln, Neb., for defendant.

DELEHANT, District Judge.

This case was before the court in Wilson & Co. v. Fremont Cake & Meal Co., D. C. Neb., 77 F.Supp. 364, 380, which sets out, with clarity and detail adequate for present purposes, the nature of the action and the posture of the pleadings up to the date of that ruling. In the cited memorandum (speaking as of March 23, 1948 and filed on March 24, 1948) the court, upon due consideration of a motion by the defendant for a stay of proceedings, under Title 9 U.S.C.A. § 3, pending arbitration of the controversy between the parties asserted in the complaint, announced its ruling in the following summarizing language:

"Upon the entire record before it, the court considers that the defendant's motion is well taken and should be granted. An order is announced accordingly.

"Counsel for the defendant will promptly prepare and submit to counsel for the plaintiff an order reflecting the ruling thus made, and, upon agreement as to form, to the court for entry. If agreement upon the language of the order be not reached, the court on request of either party will settle it."

The clerk on March 24, 1948 transmitted to counsel for the respective parties copies of the memorandum. No formal order in writing "reflecting the ruling thus made" has ever been filed or submitted to the court. Nor has either party requested the court to settle the form of the order upon any disagreement with respect thereto between counsel. Late in April, 1948 the judge was informally advised that the attorney for the plaintiff actually charged with its representation in the case, in consequence of imperative engagements then known generally to exist, had been unable to examine, and agree upon or except to, a form of order theretofore tentatively prepared by counsel for the defendant; and at a somewhat later, though not presently recalled date the persistence of those engagements was mentioned, again informally, this time by one of the defendant's attorneys.

On July 19, 1948, the plaintiff filed in the action without previous service on the defendant a pleading which it designated as a "Motion" but which was actually a notice of dismissal. A copy of the body of the pleading is set out in a footnote.1 The filing thus made did not invite, or assume to require, any action by the court. But on the same day upon the oral request of plaintiff's counsel, and without notice to the defendant, the court entered an order, reciting the filing of notice of dismissal, and ordering that the action be dismissed without prejudice at plaintiff's costs. A copy of that order is set out in a footnote.2 Notice of the entry of the order of dismissal was given by the clerk through the United States mail to counsel for both parties on July 29, 1948.

Thereafter, nothing occurred, and nothing was served or filed, in the action until November 13, 1948 when the defendant served and filed its motion for the vacation

83 F. Supp. 902
of the court's order of July 19, 1948, the reinstatement of the action and the entry of an order in conformity with the ruling announced in the memorandum of March 23, 1948.3 It is alleged, in the material offered in support of the motion, and conceded in a brief submitted to the court by the plaintiff, that the plaintiff, on or about October 29, 1948, had instituted an action against the defendant upon its claim set out in its complaint herein, in the District Court of Dodge County, Nebraska, in which county the defendant has its principal place of business. The motion of November 13, 1948 is the subject of this ruling. It is being denied. And the reasons for that action will now be set down

The voluntary dismissal of actions pending in this court is governed by Federal Rules of Civil Procedure, rule 41(a) (1, 2) 28 U.S.C.A. In its form, effective on July 19, 1948, it is set out in a footnote.4 Its examination discloses that, by it, a clear distinction is made, both in the character of the plaintiff's right voluntarily to dismiss, and in the procedure for the exercise of the right, as between the time prior, and the time subsequent, to the service by the defendant of his answer or of a motion for summary judgment. Before such service the plaintiff's right to dismiss (with exceptions that are presently irrelevant) is absolute and unconditioned, and dismissal is accomplished without order of court merely by his filing of a notice of dismissal. After such service he may not dismiss except upon order of court and upon such terms as the court deems proper. And, to invite such an order and the exercise of judicial discretion respecting terms, the service of a motion would appear to be the orderly course and also to be contemplated by the text of Rule 41(a) (2).

In the consideration of the pending motion the critical question is whether, before July 19, 1948 the defendant had served its answer in this action, within the true meaning of Rule 41(a) (1)5. The defendant contends that it had, and that, as of that date, the plaintiff's right to obtain a voluntary dismissal was thereby limited by Rule 41(a) (2). With that position the plaintiff disagrees. And the court rejects it.

The importance of the correct resolution of the question whether the defendant had served its answer before July 19, 1948 arises from the inescapable conclusion

83 F. Supp. 903
that, if it had not, the action taken on that date was sufficient to accomplish the dismissal of this suit. And that conclusion is compelled by the explicit language of Rule 41(a) (1). The court is persuaded, first, that the plaintiff's filing under the July date was alone sufficient to effect the dismissal without any order of the court, and, secondly, that if it carried any infirmity as a "notice of dismissal", it was adequate at least to draw the plaintiff's manifest purpose to the court's attention and was appropriately aided by the order then entered

Touching the first of those conclusions, it must be observed that the language of the filing itself (see footnote 1) declares it to be the plaintiff's "notice of dismissal of the above entitled action", and includes language in which the plaintiff "does hereby dismiss the above entitled action". That the plaintiff denominated it a "motion" does not nullify or alter its actual character. It is its content, not its label, that matters. And, by the unmistakable mandate of Rule 41(a) (1) it is made self executing "without order of court". (See citations to that effect, infra.) Furthermore, it was not required to be served on any one at any time, but was only to be filed. (See citations, infra.) That provision of the rule derives emphasis from two sources, first, its departure from the general policy of the rules requiring the service of pleadings, secondly, its distinction from the provisions of Rule 41(a) (2) whereby service of a plaintiff's motion to dismiss after the service of answer is expressly contemplated. The reason for the distinction is at once apparent. The notice of dismissal contemplated by Rule 41(a) (1) terminates the action and leaves nothing to be done either by opposing parties or by the court. The practical necessity for its service does not exist in the way that such necessity may be predicated of pleadings presented in the course of the prosecution of an action.

In that view of the plaintiff's filing of July 19, 1948 all that need be said of the court's order is that it did not vitiate, nullify or otherwise affect the plaintiff's dismissal. But, if the plaintiff's filing be appraised only as a motion — because it was thus entitled — its language clearly indicated its purpose; and, since no notice to the opposing party of the plaintiff's effort to accomplish the dismissal of its suit was required, the ex parte order of the court should be adequate to carry out the plaintiff's plan, and in that direction to fortify any merely formal infirmity in the plaintiff's own action.6

One, therefore, encounters the principal question; and that is whether, prior to July 19, 1948, the defendant had served "an answer" in the case and thereby placed it beyond the scope of Rule 41(a) (1) and brought Rule 41(a) (2) into operation. Since its only filing had been its motion for stay under Title 9 U.S.C.A. § 37, the matter to be determined is whether that motion was an answer, within the meaning of Rule 41(a) (1). The court considers that it was not.

The authorities cited by the defendant are inadequate to sustain its position. Shanferoke Coal & Supply Corp. v. Westchester Service Corp. 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583, did not decide that a motion for a stay of proceedings pending arbitration was an answer. What it did decide, respecting the special defense8 of the existence of an arbitration agreement, was that it was an equitable defense or cross bill within the meaning of Section 274b of the Code,9 and that once it was

83 F. Supp. 904
asserted by answer, a motion for a stay of proceedings based upon it was an application for an interlocutory injunction, from a denial of which an appeal would lie. In Gatliff Coal Co. v. Cox, 6 Cir., 142 F.2d 876, a similar view was taken in a case where an agreement for arbitration was pleaded in an answer as a bar to jurisdiction and thereafter was asserted in a motion for a stay. In neither of those cases was there a judicial determination of the status as an answer of a motion for stay pending arbitration. And the citation of Kilpatrick v. Texas & Pacific Ry. Co., D.C.N.Y., 72 F.Supp. 632 in support of the text of Section 3239...

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