No. 722 | E.D. Tenn. | Nov 19, 1945
There has been submitted an approved order dismissing this case without prejudice on the motion of the plaintiff.
I do not believe that this is a proper order in view of all the circumstances and have declined to approve it. This case came on for action of the Court upon application for a preliminary injunction. After hearing argument and after careful consideration, the application for preliminary injunction was denied.
The facts of the case are not in dispute and the same rules applicable in denying the application for a preliminary injunction would bar the action on its merits.
Such being the situation, it is my judgment that the plaintiff should not be permitted to ascertain the views of one court then dismiss without prejudice with the right to undertake to secure a different conclusion in another tribunal. I think that these circumstances present a situation where I should exercise the discretion granted under Federal Rules of Civil Procedure, rule 41(a) (2), 28 U.S.C.A. following section 723c, by denying dismissal without prejudice. Cf. Baker v. Sisk, D.C.E.D.Okl., 1 F.R.D. 232" date_filed="1938-12-17" court="E.D. Okla." case_name="Baker v. Sisk">1 F.R.D. 232.
I think the suit should be dismissed with prejudice or proceed to final judgment.