Paul Bartsch v. Chamberlin Company of America, Inc.

Sixth Circuit

Paul Bartsch v. Chamberlin Company of America, Inc.

266 F.2d 357, 1959 U.S. App. LEXIS 4074

CourtCourt of Appeals for the Sixth Circuit

DecidedApril 11, 1959

Docket13742

StatusPublished

Cited by18 cases

This text of 266 F.2d 357 (Paul Bartsch v. Chamberlin Company of America, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Paul Bartsch v. Chamberlin Company of America, Inc., 266 F.2d 357, 1959 U.S. App. LEXIS 4074 (6th Cir. 1959).

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Opinion

PER CURIAM.

Appellant filed an action in the District Court against the appellee for breach of contract. Appellee moved to dismiss the action for the reason that the complaint’failed to state a claim upon which relief could be granted. By order of July 3, 1957, the District Judge granted appellee’s. motion and. ordered “that'the complaint herein is hereby dismissed at plaintiff’s costs.” No appeal was taken.

On September 30, 1957, appellant filed the present action m- zhe District Court against the appellee upon the same alleged cause of action. Appellee filed a motion for summary judgment in which it referred to the order of July 3, 1957, in the first case and stated that it constituted a complete bar against the prosecution by the appellant of this action. The District Judge ruled “Motion granted, pursuant to Rule 41(b).”, and an order was entered dismissing the action at appellant’s costs. This appeal followed.

Since the order of dismissal in the first case was not by reason of lack of jurisdiction or improper venue and did not specify that it was not upon the merits, under Rule 41(b), Rules of Civil Procedure, 28 U.S.C.A. it operated as an adjudication upon the merits. Van Brode Milling Co. v. Kellogg Co., D.C. Del., 113 F.Supp. 845, 847; Bartfield v. Parkhurst, D.C.Puerto Rico, 117 F.Supp. 82, 83. Appellant did not request leave to amend or that the order of dismissal provide that it was without prejudice. The District Judge correctly ruled that it operated as a bar to the present action. American National Bank & Trust Co. v. United States, 79 U.S.App.D.C. 62, 142 F.2d 571.

The judgment is affirmed.

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PER CURIAM.

Appellant filed an action in the District Court against the appellee for breach of contract. Appellee moved to dismiss the action for the reason that the complaint’failed to state a claim upon which relief could be granted. By order of July 3, 1957, the District Judge granted appellee’s. motion and. ordered “that'the complaint herein is hereby dismissed at plaintiff’s costs.” No appeal was taken.

On September 30, 1957, appellant filed the present action m- zhe District Court against the appellee upon the same alleged cause of action. Appellee filed a motion for summary judgment in which it referred to the order of July 3, 1957, in the first case and stated that it constituted a complete bar against the prosecution by the appellant of this action. The District Judge ruled “Motion granted, pursuant to Rule 41(b).”, and an order was entered dismissing the action at appellant’s costs. This appeal followed.

Since the order of dismissal in the first case was not by reason of lack of jurisdiction or improper venue and did not specify that it was not upon the merits, under Rule 41(b), Rules of Civil Procedure, 28 U.S.C.A. it operated as an adjudication upon the merits. Van Brode Milling Co. v. Kellogg Co., D.C. Del., 113 F.Supp. 845, 847; Bartfield v. Parkhurst, D.C.Puerto Rico, 117 F.Supp. 82, 83. Appellant did not request leave to amend or that the order of dismissal provide that it was without prejudice. The District Judge correctly ruled that it operated as a bar to the present action. American National Bank & Trust Co. v. United States, 79 U.S.App.D.C. 62, 142 F.2d 571.

The judgment is affirmed.

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266 F.2d 357, 1959 U.S. App. LEXIS 4074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paul-bartsch-v-chamberlin-company-of-america-inc-ca6-1959.

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