Stein v. Reynolds Securities, Inc., 81-5093
| Decision Date | 04 February 1982 |
| Docket Number | No. 81-5093,81-5093 |
| Citation | 667 F.2d 33 |
| Parties | Murray STEIN, Plaintiff-Appellant, v. REYNOLDS SECURITIES, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ralph Paul Douglas, Fort Lauderdale, Fla., for plaintiff-appellant.
Smathers & Thompson, James L. Armstrong, III, Miami, Fla., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before THORNBERRY *, FAY and HATCHETT, Circuit Judges.
This appeal challenges the district court's granting of summary judgment in favor of Reynolds Securities, Inc., which dismissed Murray Stein's federal claims and pendant state action. We affirm the dismissal of Stein's federal counts and remand Stein's pendant state action for further consideration by the district court. 1
In 1976, Murray Stein filed a complaint against Reynolds Securities, Inc., alleging five federal claims and one pendant state claim. In 1979, the district court dismissed Stein's suit for failure to prosecute, and Stein filed a new complaint. The district court subsequently granted summary judgment in favor of Reynolds. The district court found that the federal claims were barred by the statute of limitations. Because all federal claims were dismissed, the district court dismissed the pendant state claim without prejudice to the plaintiff's right to pursue his claim in state court. The state period of limitations, however, had run during pendency of this action.
We must determine whether Stein's first filing, which was subsequently dismissed for failure to prosecute, tolled the federal period of limitations. We must also determine whether a federal court may retain jurisdiction over a pendant state action which has been barred by the state period of limitations even though all federal claims have been dismissed.
Stein contends that the period of limitations was tolled by the filing of his initial suit in 1976, despite the fact that the district court subsequently dismissed this action for failure to prosecute. We disagree. The fact that dismissal of an earlier suit was without prejudice does not authorize a subsequent suit brought outside of the otherwise binding period of limitations. See Goff v. United States, 659 F.2d 560 (5th Cir. 1981). This former Fifth Circuit opinion which was decided on October 15, 1981, by Unit A of that Court, is not binding precedent for the Eleventh Circuit. The discussion of this issue in Goff is persuasive however, and we choose to follow that reasoning. Had the decision been made by a non-unit panel of the Former Fifth, the full en banc court of the Former Fifth, or Unit B panel of the Former Fifth Circuit, we would regard the decision as binding precedent which we sould have to follow absent Eleventh Circuit en banc consideration. Unit A en banc decisions and Unit A panel decisions after October 1, 1981, are only persuasive, however, not binding precedent in the Eleventh Circuit. We therefore find that Stein's federal claims were barred by the period of limitations.
Stein next contends that the dismissal of all federal claims does not destroy pendant jurisdiction of state claims where the state claim would be barred in state court because of the running of the period of limitations. The...
To continue reading
Request your trial
-
Angle v. Dow, Civ. A. No. 92-0344-AH-C.
...Cir. 1972); CMS Industries, Inc. v. L.P.S. International, Ltd., 643 F.2d 289, 295 (5th Cir. Unit B 1981). In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), the Eleventh Circuit adopted as precedent all decisions of Unit B of the former Fifth ...
-
Smith v. Dunn
...October 1, 1981, and all former Fifth Circuit Unit B and non-unit decisions rendered after October 1, 1981. See Stein v. Reynolds Secur., Inc. , 667 F.2d 33, 34 (11th Cir. 1982) ; Bonner v. City of Prichard , 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc ).13 Citations to page numbers in do......
-
Planned Parenthood Se., Inc. v. Bentley
...October 1, 1981, and all Former Fifth Circuit Unit B and non-unit decisions rendered after October 1, 1981. See Stein v. Reynolds Secur., Inc., 667 F.2d 33, 34 (11th Cir.1982) ; Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc). While the Eleventh Circuit has not exp......
-
Hall v. Thomas
...upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981, en banc), adopting as binding precedent all of the ......
-
THE CASE FOR TERMINATION OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES.
...was carved out of the Fifth, see Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc); Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); when the Tenth was carved out of the Eighth, see Bonner, 661 F.2d at 1210 (collecting cases); and when the Federal Circuit......