On July 23, 1979, Louis Johnson brought suit under 42 U.S.C. § 1981 in the United States District Court for the Eastern District of Missouri, alleging that “Boyds,” a corporation “primarily engaged in the retail clothing business,” had failed to hire him because he was black. Summons was served on Boyd-Richardson Co. Boyd-Richardson moved to dismiss, arguing that “Boyd’s, a Corporation” does not exist, and that the court therefore lacked jurisdiction. On September 7, 1979, the District Court granted the motion to dismiss and directed that “this case be and is dismissed without prejudice.” The court’s order added, however, that plaintiff would be given 15 days to amend his complaint to name the defendant correctly. The plaintiff filed no amendment, and, on October 4, 1979, the District Court entered another order “that this case be and is dismissed.” This second order did not state expressly whether the dismissal was with or without prejudice.
On February 29, 1980, plaintiff filed a new action, alleging substantially the same claim as in his first complaint. The defendant was described (this time correctly) as Boyd-Richardson Co., “primarily engaged in the retail clothing business.” On April 15, 1980, Boyd-Richardson again moved to dismiss, this time on the ground of res judicata. Plaintiff filed no opposition to this motion. On June 19, 1980, the District Court granted it. Two grounds were assigned for this action. First, the prior dismissal, entered on October 4, 1979, was said to have been with prejudice. Second, plaintiff’s failure to amend his complaint in the first action, and his failure to respond to the motion to dismiss in the second action, were characterized as “a clear record of abuse of the judicial system” justifying dismissal. From this second order of dismissal plaintiff now brings his appeal.
In support of the contention that the doctrine of res judicata bars the present suit, defendant argues that the October 4 dismissal was with prejudice and therefore an adjudication on the merits. Fed.R.Civ.P. 41(b) provides, generally, that unless the court “otherwise specifies” any dismissal “operates as an adjudication on the merits.” The Rule also provides, however, that when a dismissal is for “lack of jurisdiction,” the effect is not an adjudication on the merits, and therefore the res judicata bar does not arise. The October 4 dismissal was within this exception.
The scope of the “lack of jurisdiction” exception to Rule 41(b) is not so narrow as to include only those “fundamental jurisdictional defects which render a judgment void and subject to collateral attack .... ”
Costello v. United States,
[i]f the first suit was dismissed for a defect of pleadings, or parties, or a misconception of the form of the proceeding, or the want of jurisdiction, or was disposed of on any ground that did not go to the merits of the action, the judgment rendered will prove ho bar to another suit.
Appellee next argues that the dismissal of October 4,1979, should be characterized as a dismissal for failure “to comply with ... any order of court” and that such dismissal does “operate as an adjudication upon the merits.” Fed.R.Civ.P. 41(b). This argument is unpersuasive. The order simply made final the previous dismissal, expressly labeled “without prejudice,” for failure to name the correct party. A similar case,
Mann v. Merrill Lynch, Pierce, Fenner and Smith, Inc.,
The issue here is indistinguishable. We are unwilling to assume that the District Court intended its October 4 order (entered by a different Judge from the one to whom the second action was assigned) to dismiss Johnson’s suit with prejudice for failure to amend the complaint.
2
As has been said many times by many courts dismissal with prejudice is a harsh sanction to be imposed only in extreme cases. See
Moore v. St. Louis Music Supply Co.,
In dismissing the second action, the District Court also noted that plaintiff had failed to respond to the motion to dismiss the second action. Local R. 7(BX2) of the District Court requires each party opposing a motion to file within five days a brief statement of opposition. Failure to comply with such a rule, however, cannot be, standing alone, a ground sufficient to extinguish a claim on its merits. Rather, the District Court, after the passage of the period of time prescribed by local rule, is free to consider the merits of the pending motion without waiting any longer for the other party to furnish citations or other reasons for denying it. It remains the court’s duty to inquire into the merits of the motion and to grant or deny it, as the case may be, in accordance with law and the relevant facts. In a civilized system of justice, the norm should be to decide claims on their merits, and the mere inaction of a party or his lawyer should not result in the loss of a hypothetically meritorious claim, except in those limited instances, see, e. g., Fed.R. Civ.P. 37, where clear notice is given in advance that a certain procedural default will or might result in loss of a claim or defense. And even in this narrow class of *150 cases, the Due Process Clause of the Fifth Amendment warns that dismissal must not only be preceded by fair notice, but must also be fairly proportionate to whatever procedural default may have been committed, and must be considered only within the context of whatever lesser sanctions might be available. In short, when plaintiff failed to answer the motion to dismiss, the District Court’s duty was to decide the merits of the motion. When it did so by dismissing the second action on grounds of res judicata, it was, for reasons we have explained earlier in this opinion, mistaken.
The judgment is reversed, and the cause remanded for further appropriate proceedings in Johnson’s second action.
Notes
. Defendant now argues that the dismissal of October 4, 1979, is not within the “lack of jurisdiction” exception. But its memorandum in support of the motion to dismiss contended that “[i]t is axiomatic that when a named defendant is not a legal entity, the court lacks jurisdiction to render a judgment against it.”
. The dismissal order of October 4, 1979, reads in its entirety as follows:
On September 7, 1979, this Court dismissed this case without prejudice due to plaintiffs failure to correctly name the defendant. Plaintiff, though, was allowed fifteen days in which to amend the complaint to correct the error. That period having passed without plaintiff having amended the complaint,
IT IS HEREBY ORDERED that this case be and is dismissed.