Opinion
8:00CV617.
July 6, 2001.
MEMORANDUM AND ORDER ON THE DEFENDANTS' MOTIONS TO DISMISS
Motions to dismiss filed by Philip Morris Incorporated, Lorillard, Inc., and Brown Williamson Tobacco Company, filing 5, and by R.J. Reynolds Tobacco Holdings, Inc., filing 12, are presently before me. Defendant Liggett Group, Inc. joins in both of these motions to dismiss (see filing 9), and R. J. Reynolds Tobacco Holdings, Inc. joins in the motion to dismiss filed by Philip Morris Incorporated, Lorillard, Inc., and Brown Williamson Tobacco Company (see Mot. of R.J. Reynolds Tobacco Holdings, Inc. to Dismiss Pl.'s Compl. at 2 n. 3; Mem. in Supp. of R. J. Reynolds Tobacco Holdings, Inc.'s Mot. to Dismiss the Compl. at 1 n. 2). The defendants argue that dismissal of the complaint is proper pursuant to Rules 12(b)(6), 12(b)(2), 12(b)(5) and 41(a) of the Federal Rules of Civil Procedure. The plaintiff has not responded to either of the defendants' motions. For the reasons stated below, the defendants' motions will be granted.
ANALYSIS
The defendants argue that the claims raised in the complaint are barred under Fed.R.Civ.P. 41(a)(1). Pursuant to Rule 41(a)(1), a notice of dismissal filed by a plaintiff operates as an adjudication upon the merits when the plaintiff has already once dismissed an action based on or including the same claim.
On January 8, 1999, the plaintiff filed a complaint in this court against the same defendants named in this action. Mumin v. Philip Morris, 4:99CV3005 (D.Neb. filed January 8, 1999). The complaint purported to set forth causes of action pursuant to 42 U.S.C. § 1985, 42 U.S.C. § 1986, and 18 U.S.C. § 1952. (Mumin v. Philip Morris, 4:99CV3005, filing 1 at 1.) However, the complaint also alleged violations of several state laws, including "deceptive trade practices, strict product liability, negligence, . . . [and] defective products. . . ." (Id., filing 1 at 8.) The factual allegations accompanying the complaint were similar to those included in the present action. (See generally Id., filing 1.) On July 3, 2000, the plaintiff filed a letter indicating that he wished to dismiss his complaint. (Id., filing 96.) According to the docket sheet, none of the defendants ever filed either an answer or a motion for summary judgment. As the defendant had not yet filed an answer or a motion for summary judgment, and since the dismissal was obtained without a proper motion, notice, or hearing, the dismissal is to be construed as one pursuant to Rule 41(a)(1)(i). Gioia v. Blue Cross Hospital Service, Inc. of Missouri, 641 F.2d 540, 544 (8th Cir. 1981). The dismissal was therefore effective without an order of the court:
Rule 41(a)(1) provides that "an action may be dismissed by the plaintiff without order of 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." Fed.R.Civ.P. 41(a)(1). We have held that Rule 41 is designed to "fix the point at which the resources of the court and the defendant are so committed that dismissal without preclusive consequences can no longer be had as of right." Because the rule permits dismissal as of right, it requires only notice to the court, not a motion, and permission or order of court is not required. Thus, the courts can consider only the point at which a plaintiff loses the right to voluntary dismissal.
Rule 41 provides that the plaintiff loses the right when an answer or a motion for summary judgment is filed. These two instances have been construed strictly and exclusively. In Foss v. Federal Intermediate Credit Bank, 808 F.2d 657, 660 (8th Cir. 1986), we recognized that the rule "must not be stretched beyond its literal terms." Similarly, other courts have held that Rule 41(a)(1) creates a bright line that leaves no discretion to the courts. Thus, we consider only whether an answer or a motion for summary judgment was filed before the notice of voluntary dismissal.Safeguard Business Systems, Inc. v. Hoeffel, 907 F.2d 861, 863 (8th Cir. 1990) (citations omitted). Although an order of dismissal was signed by me on July 5, 2000, which specified that the "action is dismissed without prejudice to his filing in state court," (Mumin v. Philip Morris, 4:99CV3005, filing 97), this order was a nullity. Safeguard Business Systems, Inc. v. Hoeffel, 907 F.2d at 864. In Safeguard, the Eighth Circuit held that after the plaintiff filed its notice of dismissal pursuant to 41(a)(1), the district court was without jurisdiction to enter orders and judgments. Id.
On October 21, 1999, the plaintiff filed an action in the District Court of Douglas County, Nebraska, against the same defendants named in the present action. (See Mumin v. Philip Morris, 8:99CV497 (D.Neb. notice of removal filed November 23, 1999) at filing 1, Ex. A.) The complaint purported to raise causes of action pursuant to "Neb. Rev. Stat. § 20-148, 25-701 et seq., . . . 87-301 to 87-306, [and] 25-21,180 to 25-21,182 . . . ." Thus, the statutes referenced by the plaintiff inMumin v. Philip Morris, 8:99CV497 were the same as those cited in the complaint in the case now before me. In addition, the factual allegations presented in the complaint in Mumin v. Philip Morris, 8:99CV497 were similar to those in both the present complaint and inMumin v. Philip Morris, 4:99CV3005. The defendants filed a notice of removal, Mumin v. Philip Morris, 8:99CV497, filing 1, which resulted in the removal of the case from the District Court of Douglas County, Nebraska, to this court. Subsequently, the plaintiff filed a letter on July 3, 2000, indicating that he wished to dismiss the case. (Id., filing 17.) This letter was identical to the one filed by the plaintiff in Mumin v. Philip Morris, 4:99CV3005. The docket sheet reflects that the defendants filed no answers or motions for summary judgment in case no. 8:99CV497 prior to the filing of this letter. Again, as there was no formal motion to voluntarily dismiss the case, no notice to the defendants, and no hearing, the plaintiff's notice of dismissal effectively dismissed the case pursuant to Fed.R.Civ.P. 41(a)(1)(i) without an order from the court. Under Rule 41(a)(1), this would also mean that the dismissal of Mumin v. Philip Morris, 8:99CV497 operated as an adjudication upon the merits, which in turn precludes the present action. Once again an order was filed by me stating that "this case is dismissed without prejudice to his filing in a state court." Mumin v. Philip Morris, 8:99CV497, filing 18. However, as I stated previously, I was without jurisdiction to enter this order. Safeguard Business Systems, Inc. v. Hoeffel, 907 F.2d at 864.
In the present case, the plaintiff's complaint cites Neb. Rev. Stat. §§ 25-1,180 to 25-1,182, which do not appear to exist. However, a complaint filed by a plaintiff proceeding pro se is not to be held to the same standards as a formal pleading drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). After carefully reviewing the allegations presented in the complaint, I conclude that the plaintiff clearly intended to cite Neb. Rev. Stat. §§ 25-21,180 to 25-21,182, which are Nebraska's product liability statutes.
This result may seem harsh for the plaintiff, but even my earlier orders did not suggest that the plaintiff's claims would remain viable in this court. Moreover, the plaintiff has had multiple opportunities to litigate his claims in this court, and he has voluntarily and repeatedly withdrawn his claims. In re Piper Aircraft Distribution System Antitrust Litigation, 551 F.2d 213, 220 (8th Cir. 1977) ("Rule 41(a)(1) gives a plaintiff a maximum of two bites at the apple.").
Pursuant to Rule 41(a)(1) the plaintiff's prior voluntary dismissal inMumin v. Philip Morris, 8:99CV497 operates as an adjudication of his claims on their merits. It is therefore unnecessary to consider the defendants' remaining arguments in favor of dismissing the plaintiff's complaint.
IT IS ORDERED that the complaint is dismissed with prejudice pursuant to Rule 41(a)(1).