LeCompte v. Mr. Chip, Inc.

• Decision Date: 15 March 1976
• Docket Number: No. 75--2743,75--2743
• Citation: 528 F.2d 601
• Parties: Milton LeCOMPTE, Plaintiff-Appellant, v. MR. CHIP, INC., et al., Defendants-Appellees. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 601

528 F.2d 601

Milton LeCOMPTE, Plaintiff-Appellant, v. MR. CHIP, INC., et al., Defendants-Appellees.

No. 75--2743 Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

March 15, 1976.

R. M. Sharpe, Jr., Houston, Tex., Bill Sanders, Beaumont, Tex., for plaintiff-appellant.

Jack L. Allbritton, H. Lee Lewis, Jr., Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before THORNBERRY, MORGAN and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Plaintiff on this appeal argues that the district court imposed unreasonable conditions upon a voluntary dismissal without prejudice entered pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. Defendants counter that the terms attached by the district court to the dismissal without prejudice were not unreasonable and were within the court's discretion, and in any event, they assert the order is not appealable. Finding the order of dismissal to be properly appealable, we vacate and remand for further consideration by the district court in light of this opinion.

Milton LeCompte, a seaman, brought suit under the Jones Act, 46 U.S.C.A. § 688, for injuries sustained while working aboard the trawler, MR. CHIP. Because the plaintiff could not be located as the time of trial approached, his attorney filed a motion for a voluntary dismissal without prejudice, pursuant to F.R.Civ.P. 41(a)(2). The trial court granted the motion but appended several conditions to the dismissal at the behest of defendants: (1) that any subsequent suit must be filed in the same court; (2) that plaintiff must show extraordinary circumstances to justify reopening the case; and (3) that plaintiff must make an affirmative demonstration to the court's satisfaction that a valid cause of action can be maintained against defendants. Plaintiff's motion to amend or reform the order of dismissal was denied. He now appeals.

I.

Defendants challenge the right of the plaintiff to appeal the granting of his F.R.Civ.P. 41(a)(2) motion. That rule provides, in pertinent part:

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. . . . Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

'Where the trial court allows the plaintiff to dismiss his action without prejudice, the judgment, of course, qualifies as a final judgment for purposes of appeal. Ordinarily, though, plaintiff cannot appeal therefrom, since it does not qualify as an involuntary adverse judgment so far as the plaintiff is concerned.' 5 Moore's Federal Practice P41.05(3), at 1068 (2d ed. 1975), citing Scholl v. Felmont Oil Corp., 327 F.2d 697, 700--701 (6th Cir. 1964); accord, 9 Wright & Miller, Federal Practice & Procedure: Civil § 2376, at 247 (1971). This can easily be understood since the plaintiff has acquired that which he sought, the dismissal of his action and the right to bring a later suit on the same cause of action, without adjudication of the merits. The effect of this type of dismissal is to put the plaintiff in a legal position as if he had never brought the first suit. Maryland Casualty Co. v. Latham, 41 F.2d 312, 313 (5th Cir. 1930); Humphreys v. United States, 272 F.2d 411, 412 (9th Cir. 1959).

This, of course, is not the situation where a dismissal with prejudice has been granted. There the dismissal actually goes to the merits of the case and is considered a final appealable order so that the plaintiff may appeal therefrom. See Durham v. Florida East Coast Ry. Co., 385 F.2d 366 (5th Cir. 1967). Plaintiff contends that the district court's order in this case basically amounted to a dismissal with prejudice and is properly appealable under these general principles of law.

Although the district court's order in this case is labeled a 'dismissal without prejudice,' at least with respect to determining appealability, we do not believe the order had that effect. As recently noted in Carr v. Grace, 516 F.2d 502, 503 n. 1 (5th Cir. 1975), '(t)he appealability of an order depends on its effect rather than its language.'

The conditions imposed by the district court are not the type usually found in Rule 41(a)(2) dismissals. See 9 Wright & Miller, Federal Practice & Procedure: Civil § 2366, at 178--182 (1971). Most cases under the Rule have involved conditions that require payment of costs and attorney's fees. See, e.g., American Cyanamid Co. v. McGhee, 317 F.2d 295 (5th Cir. 1963); see also 5 Moore's Federal Practice P41.06, at 1081--1083 (2d ed. 1975); Annot.,21 A.L.R.2d 627, 633--637 (1952), and cases cited therein. The trial judge is not limited to conditions of payment of costs, expenses and fees. The dismissal may be conditioned upon the imposition of other terms designed to reduce inconvenience to the defendant. See, e.g., Eaddy v. Little, 234 F.Supp. 377 (E.D.S.C.1964) (dismissal conditioned on plaintiff's production of certain documents); Goldlawr, Inc. v. Shubert, 32 F.R.D. 467 (S.D.N.Y.1963) (dismissal without prejudice conditioned on plaintiff covenanting not to sue defendants, where a dismissal with prejudice might have adversely affected plaintiff's related litigation); Stevenson v. United States, 197 F.Supp. 355 (M.D.Tenn.1961) (dismissal conditioned on plaintiff's making available to defendant at second suit certain records, producing certain witnesses at trial, and paying one-half cost of defendant bringing in other witnesses).

In one sense, any requirement imposed upon a plaintiff as a condition for allowing him a voluntary dismissal amounts to some degree of prejudice to his action, as a practical matter. Our research indicates, however, that generally the conditions imposed do not create prejudice in a legal sense to the bringing of another suit. Rather, the usual conditions attached to a voluntary dismissal involve prejudice only in a practical sence (e.g., paying costs or expenses, producing documents, producing witnesses). The imposition of this type condition does not amount to the type of 'legal prejudice' which would entitle a plaintiff to appeal the grant of the dismissal he obtains.

The requirements imposed by the district court in this case are different. Here plaintiff is severely circumscribed in his freedom to bring a later suit. Before doing so he must come before the same court and affirmatively demonstrate that the case should be reopened and that he possesses a valid cause of action. Although plaintiff is not totally precluded from bringing a second suit, he must, nevertheless, prove his case preliminarily to the district court before being allowed the right to relitigate. This requirement, unlike those normally imposed with a Rule 41(a)(2) dismissal, involves prejudice in a legal sense. It becomes uncertain, as a matter of future court decision, whether he will be allowed to bring the second suit. We view this 'legal prejudice' which goes to the heart of plaintiff's legal cause of action as entitling plaintiff to appeal the conditional dismissal of his action.

Defendants argue that plaintiff cannot appeal the terms attached by the district court to a dismissal which he initiated and in which he acquiesced. Although it is certainly true that plaintiff prompted the issuance of the order of dismissal by the district court, under the circumstances of this case, he cannot be deemed to have acquiesced in or accepted the terms of the order actually entered. Prior to the entry of the order, plaintiff filed with the court a document entitled 'Plaintiff...