Joseph W. Littman v. Bache & Co.

252 F.2d 479, 1958 U.S. App. LEXIS 3721

• Court: Court of Appeals for the Second Circuit
• Decided: February 4, 1958
• Docket: 24672_1
• Status: Published

Opinions

WATERMAN, Circuit Judge.

The question presented by this appeal is whether the plaintiff-appellant had an unconditional right to dismiss this action before service by the defendant of an answer or of a motion for summary judgment. The answer lies in construction of Rule 41(a) Fed.Rules Civ.Proc., 28 U.S.C., which rule we previously have construed in Harvey Aluminum, Inc., v. American Cyanamid Co., 2 Cir., 1953, 203 F.2d 105, certiorari denied 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383.

Appellant commenced this action by the filing of a complaint on March 18. 1957, served upon the defendant on the. following day. The District Court granted a three-week extension of time, or until April 29, within which the defendant might answer or otherwise move with respect to the complaint. Within this extended time, by motion dated April 26 the defendant obtained an order directing plaintiff to show cause why the action should not be transferred to the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). On May 7 the District Court granted the motion despite plaintiff’s objections, and directed that the transfer order be settled upon two days’ notice. The following day plaintiff obtained an order returnable May 14 directing the defendant to show cause why the motion to transfer should not be reargued, and, upon reargument, denied. The date for the settlement of the transfer order was therefore set over until May 14. On May 13 the plaintiff filed a notice of voluntary dismissal. Defendant moved to vacate the dismissal and after hearing argument, the District Court, on May 16, entered an order directing that the action be transferred to the Southern District of Florida, and that the plaintiff’s notice of dismissal be vacated. The plaintiff appealed from these orders. Upon motion of the defendant to dismiss the appeal we held, 2 Cir., 246 F.2d 490, that the § 1404(a) order was not appealable, but that an appeal would lie from the order vacating plaintiff’s notice of dismissal.

Voluntary dismissal of actions commenced in the District Court is governed by Rule 41(a) which, insofar as pertinent, provides that “an action may be dismissed by the plaintiff without order of the court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs * * * ” The Rule was intended to limit the right of dismissal to an early stage of the proceedings, thereby curbing the abuse of the right which had previously been possible. See 5 Moore’s Federal Practice 1007 (2d Ed. 1951). In furtherance of the purpose underlying the Rule, we held in Harvey Aluminum, Inc. v. American Cyanamid Co., supra, [203 F.2d 108] that under the circumstances of that case the notice of dismissal filed by the plaintiff was properly vacated even though no “paper labeled ‘answer’ or ‘motion for summary judgment’ ” had been served by the defendant. There the dismissal had been attempted by the plaintiff after an adverse ruling on its motion for an injunction pendente libe. The injunction had been denied after several days of argument and testimony before the District Court. We noted that the merits of the controversy were squarely raised and the district court in part based its denial of the injunction on its conclusion that the plaintiffs’ chance of success was “remote, if not completely nil.” 203 F.2d 105, 107. Cf. Butler v. Denton, 10 Cir., 1945, 150 F.2d 687; Love v. Silas Mason Co., D.C.W.D.La.1946, 66 F.Supp. 753. These decisions rest on the ground that prior to filing of the voluntary dismissal the parties had joined issue on the merits of the controversy, irrespective of the status of the formal pleadings. Where, on the other hand, issue has not been joined prior to notice of dismissal, the courts have held that the dismissal may not be vacated. Kilpatrick v. Texas & P. Ry. Co., 2 Cir., 1948, 166 F.2d 788; Wilson & Co. v. Fremont Cake & Meal Co., D.C.D.Neb.1949, 83 F.Supp. 900; cf. Pennsylvania R. Co. v. Daoust Construction Co., 7 Cir., 1952, 193 F.2d 659.

The present case is akin to the latter group of decisions. The only issue that was raised before the District Court was whether to grant defendant’s motion to transfer the action to the Southern District of Florida. The merits of the controversy were never before the court. To be sure, both parties were familiar with the subject matter of the litigation, but this was clearly insufficient to deprive plaintiff of his right to a voluntary dismissal. We hold that the District Court erred in vacating the dismissal. See White v. Thompson, D.C.N.D.Ill.1948, 80 F.Supp. 411; Toulmin v. Industrial Metal Protectives, D.C.D.Del.1955, 135 F.Supp. 925.

Reversed.