Richard v. Union Pacific Railroad
2012 Ark. 129
| Ark. | 2012Background
- Richard filed a FELA complaint against Union Pacific in Texas federal court on March 28, 2008 for injuries sustained in the course of employment.
- Richard nonsuited the Texas case without prejudice on October 14–16, 2009, at Union Pacific’s request and with its agreement, leading to a Texas dismissal that Richard argues was joint rather than unilateral.
- Richard refiled the action in Arkansas in Jefferson County Circuit Court on March 11, 2010; Union Pacific answered and moved to dismiss for insufficiency of service and process, and for Rule 41 prejudice based on the Texas nonsuit.
- The circuit court found the summons defective (60-day vs 30-day response) and dismissed Richard’s Arkansas complaint for lack of timely service under Rule 4(i), then engaged Rule 41 to determine prejudice, concluding dismissal with prejudice was required.
- Richard contends the two-dismissal rule under Rule 41(a) or (b) should not apply because the Texas dismissal was the result of a joint agreement with Union Pacific, not a unilateral dismissal by Richard.
- The Arkansas Supreme Court ultimately held that the Texas dismissal was not a unilateral Richard act and did not trigger the two-dismissal rule; the case was reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the Texas dismissal trigger the two-dismissal rule under Rule 41(a) or (b)? | Richard argues the Texas dismissal was joint and not a unilateral Richard act, so Rule 41(a)(2) should not bar a later Arkansas action. | Union Pacific contends the Texas dismissal was Richard’s unilateral act or, at minimum, triggered Rule 41(b) if the first dismissal is considered voluntary and final. | Texas dismissal did not trigger the two-dismissal rule; dismissed case reversed and remanded. |
| Whether Smith v. Washington controls whether the first dismissal counts as a second dismissal for Rule 41 purposes. | Smith supports treating a joint stipulation as not a unilateral dismissal, avoiding the two-dismissal bar. | Smith is distinguishable and does not apply to the instant Rule 41(b) context. | Smith distinguished; not controlling to force application of Rule 41 literally here. |
| Should the court apply Rule 41 in a way that avoids harsh results when the first dismissal was obtained with the defendant’s cooperation? | Literal application would be harsh and would close the courthouse doors to a proper litigant. | Strict application preserves the integrity of Rule 41 and the two-dismissal rule. | Court declined to apply Rule 41 in a vacuum; favored a construction that avoids harsh results. |
| What is the correct outcome given the record shows the Texas dismissal was requested with Union Pacific’s agreement to enable a third-party filing in Arkansas? | Richard’s Texas dismissal was obtained with Union Pacific’s agreement and thus should not trigger the two-dismissal rule. | Even with cooperation, the record shows Richard requested the nonsuit; Rule 41’s text controls. | First dismissal not a trigger; reversal and remand. |
Key Cases Cited
- Smith v. Washington, 340 Ark. 460 (2000) (joint stipulation limits two-dismissal rule; unilateral rights restrained)
- Jonesboro Healthcare Ctr., LLC v. Eaton-Moery, 2011 Ark. 501 (2011) (distinguishes dismissals for lack of subject-matter jurisdiction from Rule 41 dismissals)
- Poloron Prods., Inc. v. Lybrand Ross Bros. & Montgomery, 534 F.2d 1012 (2d Cir. 1975) (stake in joint dismissal affects two-dismissal rule)
- Sutton Place Dev. Co. v. Abacus Mortgage Inv. Co., 826 F.2d 637 (7th Cir. 1987) (premises for evaluating dismissal timing and consent)
- Mack v. Union Pac. R.R. Co., 2012 Ark. App. 115 (Ark. App. 2012) (companion case; same facts; appellate distinction on two-dismissal rule)