Mistretta v. SS Ocean Evelyn

• Decision Date: 23 February 1966
• Docket Number: No. 63 Ad. 1224.,63 Ad. 1224.
• Citation: 250 F. Supp. 868
• 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.
• Court: U.S. District Court — Eastern District of New York

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 exercise will be to put on the defendant the burden of repeating the effort of defense (see Jones v. S. E. C., supra, 298 U.S. at p. 19, 56 S.Ct. 654; Kilpatrick v. Texas & P. Ry., S.D.N.Y.1947, 72 F.Supp. 632, 633), without, inferentially, diluting the quality or efficacy of the defense through the dismissal and its proximate consequences. There were occasional suggestions that, at least in the late phases of a case, dismissal to avert the effect of an unfavorable ruling would not be permitted. See, e. g., Yarn v. Ft. Dodge, D. M. & S. R. Co., 8th Cir. 1929, 31 F.2d 717, 720-721; Cf. Nelson v. Devney, 7th Cir. 1939, 102 F.2d 487, 490-491 (Wisconsin Law). And even a very broad statement of absolute right—later retracted—qualified it by remarking that cases were imaginable in which defendant might have acquired rights of a substantive nature that could not be protected by imposing terms and conditions on dismissal. Bolten v. General Motors Corp., 7th Cir. 1950, 180 F.2d 379, 382, 21 A.L.R.2d 623.

The fresh lines of decision occasioned by the taking effect of Rule 41(a)(2) very likely reflect reconsideration of the whole issue of the nature of the "right" of dismissal rather than the solution of any problem of interpretation presented by the language of the rule. In varying degrees the Courts have treated the rule as creating a power to deny as well as to condition exercises of the right of dismissal. Grivas v. Parmelee Transp. Co., 7th Cir. 1953, 207 F.2d 334; Ockert v. Union Barge Line Co., 3rd Cir. 1951, 190 F.2d 303; see Medina v. Erickson, 9th Cir. 1955, 226 F.2d 475, 483; Cincinnati Traction Bldg. Co. v. Pullman-Standard Car Mfg. Co., D.Del.1938, 25 F.Supp. 322; Cf. Peardon v. Chapman, 3rd Cir. 1948, 169 F.2d 909, 913. Leave to dismiss has been denied where the prospective substitute litigation...