Dvorak v. Granite Creek GP Flexcap I, LLC, 110618 FED7, 18-1892

Docket Nº:18-1892
Opinion Judge:EASTERBROOK, Circuit Judge.
Party Name:Peter T. Dvorak, Plaintiff-Appellant, v. Granite Creek GP Flexcap I, LLC; Mark A. Radzik; and Peter Lehman, Defendants-Appellees.
Judge Panel:Before BAUER, EASTERBROOK, and SCUDDER, Circuit Judges.
Case Date:November 06, 2018
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Peter T. Dvorak, Plaintiff-Appellant,

v.

Granite Creek GP Flexcap I, LLC; Mark A. Radzik; and Peter Lehman, Defendants-Appellees.

No. 18-1892

United States Court of Appeals, Seventh Circuit

November 6, 2018

Argued October 29, 2018.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16 C 9996 - Thomas M. Durkin, Judge.

Before BAUER, EASTERBROOK, and SCUDDER, Circuit Judges.

EASTERBROOK, Circuit Judge.

A plaintiff may dismiss a federal suit without prejudice to refiling. That privilege may be used only once. "[I]f the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits." Fed.R.Civ.P. 41(a)(1)(B). Illinois follows the same rule. 735 ILCS 5/13-217.

This appeal arises from a federal-state-federal sequence: the first suit was filed in federal court and dismissed, the second was filed in Illinois court and dismissed, and the third is back in federal court. The district judge deemed the Illinois statute applicable and dismissed the third suit with prejudice. 2017 U.S. Dist. LEXIS 25211 (N.D. 111. Feb. 23, 2017).

Rule 41(a)(1)(B) does not by itself require dismissal, because it attaches consequences only to the federal court's own acts. So if the first suit is filed in state court and dismissed, and the second is filed in federal court, then voluntary dismissal of the second suit is covered by Rule 41(a)(1)(B) and is with prejudice. But when the second suit is filed and dismissed in state court, state law determines whether that act is with or without prejudice. Still, the effect that Illinois law gives to a second dismissal depends on the proper characterization of the initial dismissal-and that is an issue of forum law. Federal law determines the appropriate characterization of what happens in federal court, then state law determines whether (given that characterization) the later dismissal of a state suit is with or without prejudice.

Here is the text of 735 ILCS 5/13-217 (emphasis added): [I]f judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff ... may commence a new action within one year or within the remaining period of limitation, whichever is greater ....

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