*1 1080 Wilson, purposes involvement. See the first dismissal counts for
further adjudication Proper at 692. rule. preclusive two dismissal inevitably the two dismissal rule will dismissal, any, effect of that if is for deter- (as here) briefing, volve it did mination in a subsequently filed action that hearings, and court orders' —all of which implicates the two dismissal rule. upon the nature of the impinge “absolute PART; AFFIRMED IN VACATED IN dismissal, voluntary right PART. by ad- extinguished or circumscribed Soccer, versary or court.” See American (internal omitted). quotations
at 1111 judicata,
Like of res determinations
routinely occur in the context of a different
action, forum, usually in a different
see no reason the interests of
economy by deferring are not well served prior
resolution of the effect dismissals under the two dismissal to the third rule Phillip SANDERS, R. Plaintiff- action, if and when one is filed that Appellant, based on or includes the same claim. It filed, may well be that none is ever there- by avoiding a two dismissal determination UNION PACIFIC RAILROAD altogether. COMPANY, Defendant- Appellee. Ill It follows from American Soccer line of long ancestors the dis trict court play role to once a notice Appeals, United States Court of 41(a)(1) of dismissal under Rule is filed. point, The action is terminated at that as if 5,May Therefore, had action ever been filed. power place district court has no Sept. Decided 41(a)(1) condition on a Rule dismissal at request. the defendant’s This would con En Rehearing Banc Granted Opinion 41(a)(1) flate Rule dismissals Rule Withdrawn June 41(a)(2) dismissals, contrary to their differ Argued and Submitted Aug. ent language purpose. By the same token, plaintiff label attaches Filed Oct. 41(a)(1) second Rule dismissal is irrelevant if a subsequent action is filed “based on or claim,”
including the same because Rule
41(a)(1) itself instructs that such a dismiss “operates adjudication
al upon 41(a)(1).
merits.” See Fed.R.Civ.P.
As we conclude that authority impose lacked a condi
tion one way or the other on CSMC’s
notice of dismissal of #2 Action 41(a)(1)(i), 59(e) Boeing’s Rule
should have been denied but not on the
merits. We accordingly affirm the denial
of the motion and vacate the district
court’s decision to whether *2 conference date
ber form of November 8. Its standard parties required conference order also twenty-one documents to submit certain days trial and others fourteen days before warned that fail- before. The form order sanctions, comply could result ure to including dismissal. of the Sanders’s
As brief, not filed a trial memo- counsel had law, of fact and randum of contentions Pacific’s motions in responses to Union limine, proposed questions voir dire as His motion in limine was he should have. witness, late, and his exhibit days filed six day filed the expert lists were witness under days two late failed to meet and the order. Counsel despite requests with Pacific confer Union so, joint a result of which no that he do notebook, joint proposed jury exhibit Costan, Burbank, Califor- E. Charlotte structions, was sub- joint trial notebook nia, plaintiff-appellant. for the mitted. Mascovich, Crosby, Heafey, Joseph P. pretrial conference was held as The final California, Oakland, for the May, Roach & scheduled, except Ideman’s law Judge defendant-appellee. presided. counsel said Sanders’s complex involved that he had been and asked FELA action Nebraska explain opportunity with the comply unable to he had been both clerk told counsel for order. HUG, Chief Before: would be vacated parties that the trial date SCHROEDER, CANBY, BROWNING, probably set the court would and that the TROTT, RYMER, O’SCANNLAIN, an order to show hearing on McKEOWN, THOMAS, cause. Judges. Nevertheless, November on RYMER, Judge: deputy notified coun- courtroom Ideman’s had been dismissed that the case sel appeals Phillip Sanders day the court issued prejudice. That same of his action sua dismissal court’s trial date and vacating the a written order failure to prejudice for pursuant to Federal dismissing the case preparation order. the court’s 41(b).1 Sanders’s Rule of Procedure Civil filed an action Sanders June set aside the filed a motion to counsel then Company Railroad against 60(b), which pursuant to Rule judgment Liability Employers’ the Federal hearing. without the court denied (FELA), §§ 51-60. The the court to hold that urges us M. Sanders Judge James Ide- case was client of counsel and to warn obliged of Novem- was a trial date man. The court set Beach, City Huntington tion. See Dahl all of the bases we did not touch 1. This order 1996). (9th Cir. previously said a district must imposing as a sanc dismissal touch before sponte dismissal and imminent sua to have the new judge’s discretion should be exer- dismissed without instead of with Rather, cised. simply put argues while Union Pacific square back to one. the court did not abuse its discretion be- REVERSED AND REMANDED. cause Sanders was warned in the order *3 clearly and had failed to by the with whom pretrial time the conference occurred. At Judge, joins, time, same acknowledges the concurring: “pretrial pre- that the conference” wasn’t a trial conference the normal sense and I fully concur in Judge Rymer’s majority that our analysis hampered by lack the opinion. I separately write to address an happened record about what there. point. decline to happened We dissect what out, majority opinion points As the prescribe this case and to recipe for how pretrial so-called conference was dismissed, may and when an action be by a law clerk. I do not believe there without prejudice, for failure to follow any can be doubt that a law cannot rules. This is a unique case. preside over a conference. Rule say where, here, it Suffice to specifically provides may “the court judge allows his law clerk to con- in its discretion direct attorneys pretrial conference, duct the final declines ... appear to it for a before give to counsel an opportunity to be heard trial_” conference ... before Fed. court, and then dismisses the 16(a) added). R.Civ.P. (emphasis The rule action sua we can- that, recognizes also where authorized not let the dismissal stand. rule, local the conduct of the scheduling Counsel plainly derelict in meeting planning and may conference be delegated obligations, Rule 16 but so was the 16(b). to a magistrate judge. Fed.R.Civ.P. circumstances, In judge. different comparable, No such specific delegation where the district court exercises its own authority appears in Rule 16 with deliberate, discretion in a informed and to the final conference. See Fed. way, reasonable we would accord it consid- 16(d).1 R.Civ.P. carefully From this con- See, erable e.g., deference.2 Malone v. structed rule and narrowly its circum- Serv., United States Postal 833 F.2d scribed delegation authority, it can be (9th Cir.1987). But we cannot see how gathered that a pretrial conference is a any deference is warranted in these cir- judicial proceeding cumstances. Accordingly, we vacate all ing can be only by conducted orders entered after the confer- Deeds, Riley ence and officer. remand for another district 56 F.3d judge (9th Cir.1995) to proceed.3 consider afresh how to (convening so of court doing, express opinion aboüt how law clerk who directed court reporter to Likewise, 60(b) a Rule judge; necessarily assigned will be to a new ruling court's may on it sometimes cure defi- any event. ciencies in the initial award of sanctions. See Co., 626, 632, note, however, Link v. Wabash R.R. I Magistrates that the (1962). designated magistrate judges authorizes But the "to ruling later here, cannot hear rescue the and determine pend- earlier one court,” ing inextricably since it is intertwined before exceptions. with certain order, 636(b)(1)(A). the initial § pro- resulted from a con- The Act also ference magistrate over which preside. did not vides that "[a] such additional duties as are not inconsistent resigned Ideman from the federal with the Constitution and laws of the United bench 636(b)(3). after decision was rendered in this States.” 28 U.S.C. We need not case. For this reason explore we do not need provisions in this case whether these decide whether this action should magistrate judge be reas- authorize a signed to 16(d). the calendar of a different district conference under Rule disposition I therefore re- jury in absence concur testimony back read imposition versing error sanctions structural constitutional judge was reversal). remanding court. not a the case clerk is requiring judi- and cannot conduct judicial officer final, Rule including proceeding,
cial
16(d) pretrial conference. have aware of
Judge Ideman must been appears to strictures because he
these pre- steps taken to ensure that matter of conference did not become a
trial entry There is no on the docket record. McKnight PARDEE; In re Robert *4 case, Order, Minute that a this Clerk’s Daigle-Pardee, Darlene Nor, was ever held. pretrial conference Debtors. the Court contrary requirement Act, Reporters requires which all Higher Great Education Lakes court “be recorded ings of district Corporation, Appellant, verbatim,” 753(b), were U.S.C. v. proceedings reported pretrial conference McKnight Pardee; Robert Darlene verbatim reporter a court recorded Daigle-Pardee, Appellees. simply There is way. in other court that a record place. conference ever took of Appeals, United States Court Yet, nature of spite of the sub rosa Sanders was visit- the ultimate sanction—dismissal ed with 1999. May his attor- case with —because July 7, Memorandum Filed view, it. my ney prepare failed Order Filed Oct. A nullity. was pretrial conference a (undoubted- purported law clerk judge) at the direction of
ly which, in a held although from
proceeding courtroom, himself, and which
completely absented reported. renegade, ultra
was not Such procedure cannot be sanctioned.2
vires 16(d) clerk, over a law from deliberately him- absented
self, is not a conference within counsel, 16; therefore,
meaning of Rule party, cannot be sanc- unrepresented unprepared for such being
tioned
“conference.” however, juris objected jurisdiction, Understandably, no one to the law absence all Waco, presiding over the conference. dictional issue. 9, 11-12, Mireles argument, appeared (1991) that this At oral Ide customary manner acting (a judge judicial immunity when loses man conducted his conferences. complete jurisdiction”). absence of all “in the person officer Whether who is be waived. jurisdictional issues cannot And proceeding may preside