ASX Investment Corp. v. Newton

• Citation: 183 F.3d 1265
• Decision Date: 11 August 1999
• Docket Number: No. 97-3562,97-3562
• Parties: (11th Cir. 1999) ASX INVESTMENT CORP., Plaintiff-Appellant, v. R. PARK NEWTON, III, and ASSIX INTERNATIONAL, INC., a Delaware corporation, Defendants-Appellees
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1265

183 F.3d 1265 (11th Cir. 1999)

ASX INVESTMENT CORP., Plaintiff-Appellant, v. R. PARK NEWTON, III, and ASSIX INTERNATIONAL, INC.,

a Delaware corporation, Defendants-Appellees.

No. 97-3562

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

August 11, 1999

Appeal from the United States District Court for the Middle District of Florida D. C. Docket No. 96-348-CV-T-25B

Before ANDERSON ,Chief Judge, BLACK, Circuit Judge, and STAFFORD^*, Senior District Judge.

BLACK, Circuit Judge:

Appellant ASX Investment Corp. appeals the district court's dismissal of its complaint under the Fed. R. Civ. P. 41(a)(1) two dismissal rule. We hold the dismissal of Appellant's Delaware state case upon Appellant's motion and court order did not constitute a first dismissal implicating the two dismissal rule and therefore reverse.

I. BACKGROUND

Since 1994, Appellant has filed three actions against Appellees Assix International Inc. (Assix) and R. Park Newton, III - one in Delaware Chancery Court and two (including this case) in federal court. All three are relevant to this appeal.¹

A.The Delaware Chancery Court Case

On April 8, 1994, Appellant filed its Delaware Chancery Court case against Appellees, seeking primarily an injunction barring Appellees from taking actions to entrench Assix management and disenfranchise stockholders in violation of Delaware law. After Appellees filed an answer, Appellant filed a motion to dismiss the case without prejudice. The Delaware court initially deferred ruling on Appellant's motion in order to permit Appellees to complete Rule 11 discovery. On May 18, 1994, the Delaware court granted the motion to dismiss without prejudice and without conditions. In so ruling, the court pointed out that, in light of the early stage of the proceedings, Appellees would suffer little, if any, harm from the dismissal. In concluding that no conditions were warranted, the court noted Appellant was unaware of the facts underlying the newly-filed federal securities case (the 1994 federal case) until it conducted discovery in the Delaware action and Appellant therefore could not reasonably have foreseen that federal court would be a more efficient forum for its claims.

B.The 1994 Federal Case

On April 26, 1994, Appellant filed its first federal action against Appellees in the U.S. District Court for the Eastern District of Pennsylvania. The complaint alleged violations of state and federal securities laws and other state claims, and sought monetary and injunctive relief. In July 1994, Appellant filed an amended complaint in response to Appellees' motion to dismiss for failure to state a claim. Appellees moved to dismiss the amended complaint. Without ruling on the motion to dismiss, the district court transferred the case to the Middle District of Florida on forum non conveniens grounds. After the case was transferred, the parties agreed to a discovery cut-off of December 31, 1995, and a trial date of April 1, 1996.

In November 1995, Appellant filed a motion for leave to file a second amended complaint. On February 20, 1996, six weeks before trial was scheduled to commence, with Appellant's motion to amend and the defendants' motion to dismiss still pending, Appellant filed a second federal case (this case). On March 11, 1996, Appellant filed a Fed. R. Civ. P. 41(a)(1) notice of dismissal in the 1994 federal case.

C.1996 Federal Case (This Case)

The case giving rise to this appeal was initiated by Appellant's February 20, 1996, complaint against Appellees, in which it asserted claims under RICO and Rule 10b-5, seeking declaratory relief, damages (including treble damages), and injunctive relief.²

On March 18, 1996, Appellees moved to dismiss with prejudice under the Rule 41(a)(1) two dismissal rule. On October 30, 1997, the district court granted Appellees' motion. The court reasoned that Appellant's dismissal of the 1994 federal action by Rule 41(a)(1) notice constituted an adjudication on the merits barring this action since the Delaware case, which was based on or included the same claim as the 1994 federal case, had previously been dismissed on Appellant's motion.

II. DISCUSSION

The two dismissal rule is found in the last sentence of Fed. R. Civ. P. 41(a)(1). Rule 41(a) provides in its entirety:

Rule 41. Dismissal of Actions

(a) Voluntary Dismissal: Effect Thereof

(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

(Emphasis added).

Appellant contends the district court erred by holding the dismissal of the 1994 federal case operated as an adjudication on the merits because: (1) the dismissal of the Delaware case was by motion and order of the court and therefore did not qualify as a first dismissal under the two dismissal rule; and (2) the Delaware case was not "an action based on or including the same claim" as the 1994 federal case. We conclude Appellant's first argument is dispositive and therefore do not address the second.

We review de novo the district court's interpretation of Fed. R. Civ. P. 41 and its resulting conclusion that the dismissal of the Delaware action by motion and order of the court constituted a first dismissal under the two dismissal rule. See Silvious v. Pharaon, 54 F.3d 697, 700 (11th Cir. 1995).

In construing the two dismissal rule, we look to the plain language of the rule and read it as a whole, being mindful of the linguistic choices made by the drafters. See FDIC v. Lacentra Trucking, Inc., 157 F.3d 1292, 1302 (11th Cir. 1998), cert. dismissed, __ U.S. __, 119 S.Ct. 1493, 143 L.Ed.2d 575(1999). We take care not to construe the rule too broadly, as it "is an exception to the general principle, contained in Rule 41(a)(1) and honored in equity prior to the adoption of the Federal Rules, that a voluntary dismissal of an action does not bar a new suit based upon the same claim." Poloron Products, Inc. v. Lybrand Ross Bros. & Montgomery, 534 F.2d 1012, 1017 (2d Cir. 1976).

The two dismissal rule does not state the specific means by which the first dismissal must have been obtained to implicate the rule.³ It does, however, state the rule is implicated when "a plaintiff . . . has once dismissed" a claim. Rule 41(a)(1), in which the two dismissal rule appears, provides for dismissal by a plaintiff without order of court by the filing of a timely notice of dismissal or a stipulation of dismissal signed by all parties. Dismissal on plaintiff's motion and by order of court, on the other hand, is provided for in Rule 41(a)(2). Rule 41(a)(1) and Rule 41(a)(2) each ends with a sentence explaining the effect of dismissal obtained under their respective provisions. For Rule 41(a)(1), that last sentence includes the two dismissal rule. There is no two dismissal rule set out in Rule 41(a)(2) and we see no basis for reading the two dismissal rule to apply where the first dismissal is achieved by motion and order of the court.⁴ Although dismissal under Rule 41(a)(2) is, as the rule says, "at the plaintiff's instance," the actual dismissal is by the court and therefore does not implicate the Rule 41(a)(1) two dismissal rule.⁵

Although not pivotal to our analysis, our conclusion is further supported by consideration of the purpose of the Rule 41(a)(1) two dismissal rule. "[T]he primary purpose of the 'two dismissal' rule is to prevent an unreasonable use of the plaintiff's unilateral right to dismiss an action prior to the filing of the defendant's responsive pleading." Poloron Products, Inc., 534 F.2d at 1017 (citations omitted); see also American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963) ("The reason for this arbitrary limitation [set out in the two-dismissal rule] . . . is to prevent unreasonable abuse and harassment."). A dismissal obtained by motion and order of the court under Rule 41(a)(2) or similar state rule is not unilateral and does not pose the same danger of abuse or harassment as does a Rule 41(a)(1) dismissal by plaintiff's notice. In ruling on such motions, a court has discretion to determine whether the dismissal will be with or without prejudice and with or without conditions based on its view of the case and the plaintiff's actions.⁶

Even though we conclude a dismissal by motion and court order does not implicate the Rule 41(a)(1) two dismissal rule, we do not mean to suggest that there is no limit to Rule 41(a)(2) or analogous state dismissals:

It does not follow that there is no limit at all on the number of [Rule 41(a)(2)] dismissals . . . . While there is no precise digital answer, the...