Mistretta v. SS Ocean Evelyn, No. 63 Ad. 1224.
| Court | United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York) |
| Writing for the Court | DOOLING |
| Citation | 250 F. Supp. 868 |
| Decision Date | 23 February 1966 |
| Docket Number | No. 63 Ad. 1224. |
| Parties | Salvatore MISTRETTA, Libelant, v. S.S. OCEAN EVELYN, her engines, hull, tackle, cargo and her appurtenances thereof, Ocean Transportation Co. Inc., and Maritime Overseas Corp., Respondents, v. The UNITED STATES of America, American Stevedores, Inc., Respondents-Impleaded. |
250 F. Supp. 868
Salvatore MISTRETTA, Libelant,
v.
S.S. OCEAN EVELYN, her engines, hull, tackle, cargo and her appurtenances thereof, Ocean Transportation Co. Inc., and Maritime Overseas Corp., Respondents,
v.
The UNITED STATES of America, American Stevedores, Inc., Respondents-Impleaded.
No. 63 Ad. 1224.
United States District Court E. D. New York.
February 23, 1966.
Jacob Rassner, New York City (Solomon J. Cohen, New York City, of counsel), for libelant.
Sidney A. Schwartz, New York City (Alexander, Ash & Schwartz, New York City, of counsel), for respondents and impleaded respondents.
DOOLING, District Judge.
The motion of libelant for leave to dismiss this admiralty personal injuries suit raises again the uneasy question of the right of a litigant to dismiss his case for the purpose of renewing the litigation in another court. Here, libelant means to pursue his claim in the state court before a jury. His position is the plain one that, since this court has denied the parties summary judgment, although the parties were united in arguing that summary disposition was proper, the interests of justice will be best served by having a jury trial in the state court. It is concluded that, whatever be the precise effect and analogical application in admiralty of Rule 41(a)(2), the libelant may not dismiss the present suit in admiralty without prejudice to the state court suit.
If the traditional view that a plaintiff at law had an absolute right, and a right of substance, to dismiss his suit (Ex parte Skinner & Eddy Corp., 1924, 265 U.S. 86, 92-93, 44 S.Ct. 446, 68 L.Ed. 912), prevailed in admiralty—as it seems that it did Confiscation Cases, 1869, 74 U.S. (7 Wall.) 454, 457-458, 19 L.Ed. 196; Erie R. R. Co. v. Boston, C. C. & N. Y. Canal Co., D.Mass.1921, 270 F. 876, then the first question is whether the right of dismissal was ever genuinely absolute. It is far from clear that the right was ever absolute even in the sense of vesting in plaintiff a power of dismissal upon the performance of conditions. Dismissal could be and usually was conditioned on the payment of costs (see Jones v. S.E.C., 1936, 298 U.S. 1, 19, 56 S.Ct. 654, 80 L.Ed. 1015) and it could be and was conditioned on the perpetuation of testimony already gathered in the case (American Steel & Wire Co. v. Mayer & Englund Co., S.D.N.Y. 1903, 123 F. 204) or the taking of and preserving of testimony for use in any future case before dismissal takes effect (Shattuck v. Pennsylvania R. R., W.D. N.Y.1931, 50 F.2d 974). Often, however, the statement of the "absolute" right of dismissal has been qualified by language indicating that the right is "absolute" only if the sole consequence of its...
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Dome Laboratories v. Farrell, No. 3725
...F.2d 601 (5th Cir. 1976); Selas Corp. of Amer. v. Wilshire Oil Co. of Tex., 57 F.R.D. 3 (E.D.Pa.1972); Mistretta v. S. S. Ocean Evelyn, 250 F.Supp. 868 (E.D.N.Y.1966); Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, 469 P.2d 272 12 Ferguson v. Eakle, 492 F.2d 26 (3d Cir. 1974); Pace v. So. Expr......
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Vassalos v. Hellenic Lines, Ltd., Civ. A. No. 77-2480
...Co., 375 F.2d 69 (2d Cir. 1967); Germain v. Semco Service Machine Co., 79 F.R.D. 85 (E.D.N.Y.1978); Mistretta v. S/S Ocean Evelyn, 250 F.Supp. 868 (E.D. N.Y.1966). Thus it is clear that a right to demand a jury trial, once waived, can be revived only by raising new issues. See also Williams......
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Truehart v. Blandon, Civ. A. No. 87-0708.
...& A. Miller, Federal Practice and Procedure § 2364, at 167 & n. 73 (1971) (citing, among other cases, Mistretta v. S/S OCEAN EVELYN, 250 F.Supp. 868 (E.D.N.Y.1966) (denying motion to dismiss libel in order that personal injury libelant could obtain a jury trial)); see also Annotation, Waive......
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Noonan v. Cunard Steamship Co., No. 295
...(Edelstein, J.); Evans v. Bankers Life Company, 27 F.R.D. 489 (E.D.N.Y.1961) (Bartels, J.); Mistretta v. SS. Ocean Evelyn, 250 F. Supp. 868 (E.D.N.Y.1966) (Dooling, J.), and if "abuse of discretion" were the test, we would have no more basis for interfering with those decisions than with th......
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Dome Laboratories v. Farrell, No. 3725
...F.2d 601 (5th Cir. 1976); Selas Corp. of Amer. v. Wilshire Oil Co. of Tex., 57 F.R.D. 3 (E.D.Pa.1972); Mistretta v. S. S. Ocean Evelyn, 250 F.Supp. 868 (E.D.N.Y.1966); Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, 469 P.2d 272 12 Ferguson v. Eakle, 492 F.2d 26 (3d Cir. 1974); Pace v. So. Expr......
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Vassalos v. Hellenic Lines, Ltd., Civ. A. No. 77-2480
...Co., 375 F.2d 69 (2d Cir. 1967); Germain v. Semco Service Machine Co., 79 F.R.D. 85 (E.D.N.Y.1978); Mistretta v. S/S Ocean Evelyn, 250 F.Supp. 868 (E.D. N.Y.1966). Thus it is clear that a right to demand a jury trial, once waived, can be revived only by raising new issues. See also Williams......
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Truehart v. Blandon, Civ. A. No. 87-0708.
...& A. Miller, Federal Practice and Procedure § 2364, at 167 & n. 73 (1971) (citing, among other cases, Mistretta v. S/S OCEAN EVELYN, 250 F.Supp. 868 (E.D.N.Y.1966) (denying motion to dismiss libel in order that personal injury libelant could obtain a jury trial)); see also Annotation, Waive......
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Noonan v. Cunard Steamship Co., No. 295
...(Edelstein, J.); Evans v. Bankers Life Company, 27 F.R.D. 489 (E.D.N.Y.1961) (Bartels, J.); Mistretta v. SS. Ocean Evelyn, 250 F. Supp. 868 (E.D.N.Y.1966) (Dooling, J.), and if "abuse of discretion" were the test, we would have no more basis for interfering with those decisions than with th......