Voluntary Dismissal – “Two Dismissal Rule”

Case:  Jeffrey R. Cooper v. Phillip Glasser, et al.

Facts:  Plaintiff filed a claim against Defendants in California state court alleging, among other things, breach of contract and fraud.  Plaintiff voluntarily dismissed that action without prejudice.  Plaintiff later sued the same Defendants in the United States District Court for the Middle District of Tennessee alleging the same grounds.  Plaintiff again voluntarily dismissed his action without prejudice.  Plaintiff then filed suit against Defendants a third time in Tennessee state court.  The trial court granted Defendants summary judgment and dismissed Plaintiff’s action finding that under the “two dismissal rule” of Fed. R. Civ. P. 41(a)(1)(A)(i), Plaintiff’s voluntary dismissal operated as a judgment on the merits and as such, his third suit was barred by res judicata.  On appeal, the court affirmed reasoning that because the federal court received jurisdiction from a federal question and supplemental jurisdiction, rather than diversity jurisdiction, and Plaintiff dismissed his action under the Federal Rules of Civil Procedure, rather than as a result of a state statute of limitations defense, the second dismissal was of a purely federal character and should be subject to the federal court “two dismissal rule.”

Issue:  Was the second voluntary dismissal in federal court a judgment on the merits, thus barring this third action under res judicata?

Review Granted:  February 13, 2013

Prediction:  David believes that the Court will likely reverse the decision of the Court of Appeals and apply Tennessee’s rule which permits a third filing under the reasoning of the United States Supreme Court in Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001).

ABOUT David Raybin
David Raybin

David Raybin is a partner at Raybin & Weissman and he heads up the criminal defense section of the firm. With more than 35 years of experience, David has been named the Best Criminal Lawyer in Nashville by Best Lawyers in America, and listed among the Best Criminal Lawyers in the state by Tennessee Business magazine.

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