109 F.R.D. 655 | S.D. Miss. | 1986
MEMORANDUM OPINION AND ORDER
This matter is before the Court pursuant to the Rule 41(d) Motion of Defendant Altec Industries for its costs, attorneys fees, and expenses incurred in its defense of an action which was voluntarily dismissed at the instance of Plaintiffs herein in the United States District Court for the Northern District of Mississippi, No. GC-84-221-LSO. This litigation was originally instituted by Plaintiffs in state court in Missouri. The Defendants removed the action to the United States District Court for the Eastern District of Missouri. Upon motion of Defendants, the federal court in Missouri transferred the cause to the Northern District of Mississippi pursuant to 28 U.S.C. § 1404. Subsequently, in January 1985, while the Northern District action was still
F.R.Civ.P. Rule 41(d) provides:
If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs and the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.
With due respect to our colleague in the Northern District, we do not think that this Court is the proper forum for the disposition of the motion under the circumstances present here. Specifically, we hold that Rule 41(d) is not applicable and that no relief could be forthcoming from this Court under the language of the Rule.
By its express terms, Rule 41(d) contemplates a specific sequence of events. It is applicable where a plaintiff has “once dismissed an action in any court” and then “commences” an action based on the same claim against the same defendant. While it is unquestioned that the instant action involves the same claim against the same defendant, the time sequence required by the Rule — dismissal of an action in one court followed by the commencement of an action in another court — is missing. Here, the Southern District action was already filed and pending at the same time the motion for voluntary dismissal without prejudice was filed in the Northern District action. The two near-identical actions were proceeding simultaneously at that time. Accordingly, when the motion for voluntary dismissal was pending in the Northern District, the case was in a classic posture for the imposition of “terms and conditions” upon a dismissal by that court pursuant to Rule 41(a)(2). See McLaughlin v. Cheshire, 676 F.2d 855 (D.C.Cir.1982). Had the court imposed the payment of appropriate fees and costs, i.e. a McLaughlin remedy, as a condition precedent under Rule 41(a)(2) to the granting of a dismissal without prejudice of the Northern District action, Plaintiffs would have had the option of either (1) declining to pay such fees and costs and continuing to pursue the cause to judgment in the Northern District, or of (2) accepting the conditions, paying the fees and costs assessed, and proceeding in the pending Southern District action. Yoffe v. Keller Industries, Inc., 580 F.2d 126, 129 (5th Cir.1978).
We hold that where, as here, a second identical action against the same defendant is pending at the time a motion for a voluntary dismissal without prejudice of
It may well be that terms and conditions as described in McLaughlin would have been appropriately placed upon plaintiffs in order to protect Altec from any harm or inconvenience which may have been suffered by virtue of a dismissal. This Court, however, cannot now provide relief.
For the reasons set forth above, it is ordered that Altec’s Rule 41(d) Motion be, and hereby is, denied.
. In pertinent part, Rule 41(a)(2) provides that "an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper.”