International Driver Training Inc. v. J-BJRD Inc. , 202 F. App'x 714 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the October 16, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 06-10414
Summary Calendar
_______________
INTERNATIONAL DRIVER TRAINING INC.,
Plaintiff-Appellant,
VERSUS
J-BJRD INC.; BILL CLINTON DODGIN,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:05-CV-2194
______________________________
Before SMITH, WIENER, and OWEN, Plaintiff International Driver Training Inc.
Circuit Judges. (“IDT”) filed a notice of dismissal pursuant to
Federal Rule of Civil Procedure 41(a)(1)(i). In
PER CURIAM:* its order of dismissal, the district court added
conditions that IDT must meet if it chooses to
re-file in the Northern District of Texas.
Because the district court lacked jurisdiction
*
Pursuant to 5TH CIR. R. 47.5, the court has de- to take any action other than dismissal, we re-
termined that this opinion should not be published verse and grant IDT unconditional dismissal
and is not precedent except under the limited cir- without prejudice.
cumstances set forth in 5TH CIR. R. 47.5.4.
I. “suffers no impairment beyond his fee for
Before either defendant had filed an answer filing.” Id. The effect of the dismissal is “to
or other pleading, IDT filed its notice of dis- put the plaintiff in a legal position as if he had
missal without prejudice under rule 41(a)(1)(i). never brought the suit.” Harvey Specialty &
The district court signed an order dismissing Supply Inc. v. Anson Flowline Equipment,
the case “without prejudice” but adding the Inc., 434 F.3d 320, 324 (5th Cir. 2005) (citing
following language: “If International Driver re- LeCompte v. Mr. Chip, Inc., 528 F.2d 601,
files this case in the Northern District of 603 (5th Cir. 1976)). Once a plaintiff has filed
Texas, Dallas Division, the complaint must be a proper rule 41 notice, “any further action by
filed in Judge Ed Kinkeade’s Court, and the the district court [is] neither necessary nor of
Plaintiff shall give Defendant notice of this Or- any effect.” Scam Instrument Corp. v. Control
der if this case is re-filed in any form.” IDT Data Corp., 458 F.2d 885, 889 (7th Cir.
appeals that order, alleging that the court was 1972).
without power to attach conditions to its
dismissal. IDT filed its notice of dismissal within the
guidelines provided by rule 41(a)(1)(i). Once
II. the order of dismissal was filed, the case ef-
Rule 41(a)(1) states that “an action may be fectively ceased. The district court was there-
dismissed by the plaintiff without order of after without jurisdiction to take further ac-
court (i) by filing a notice of dismissal at any tion, including placing limits on IDT’s right to
time before service by the adverse party of an file in the future.1
answer or of a motion for summary judgment,
whichever first occurs . . . .” FED R. CIV. P. It is possible that IDT’s objection to the
41(a)(1). Although there are exceptions for requirement that any re-filed case be filed in
several specific actions and statutes, none of Judge Kinkeade’s court is that IDT is cha-
which is presently relevant, “a plaintiff's right grined at having drawn Judge Kinkeade at ran-
to file a notice of dismissal under Rule 41(a)- dom and would prefer to have this case as-
(1)(i) before the service of an answer or mo- signed to a different judge in the Northern Dis-
tion for summary judgment is absolute and un- trict of Texas. If that is so, IDT might re-file
conditional.” 8 JAMES W. MOORE ET AL., the case for the sole purpose of drawing a
MOORE’S FEDERAL PRACTICE § 41.33[2], at judge it views as more favorable. We do not
41-48 (Matthew Bender 3d ed. 2006) (citing approve of such a raw attempt at forum-shop-
Carter v. United States, 547 F.2d 528, 529 ping. Any district courtSSincluding the North-
(5th Cir. 1977)). Dismissal pursuant to rule ern District of Texas in respect to this caseSSis
41(a)(1)(i) is “a matter of right running to the free to prohibit such a practice and to require
plaintiff and may not be extinguished or cir-
cumscribed by adversary or court.” Am. Cy-
anamid Co. v. McGhee, 317 F.2d 295, 297 1
See 8 MOORE, supra, § 41.33[3], at 41-50
(5th Cir. 1963). (“Unlike Rule 41(a)(2), Rule 41(a)(1) does not
contain a provision authorizing the imposition of
A notice of dismissal under Rule 41 is “self- ‘terms and conditions’ on a dismissal. The court
executing,” see 8 MOORE, supra, § 41.33- thus lacks power to impose any conditions on a
[6][a], at 41-82, so there is no need even for dismissal made by notice.”). Cf. LeCompte, 528
“a perfunctory order of court closing the file.” F.2d 601 (reversing order of dismissal imposing the
Am. Cyanmid, 317 F.2d at 297. The plaintiff condition, among others, that “any subsequent suit
must be filed in the same court”).
that a re-filed action be assigned to the original
judge, or to require that if a re-filed case is
assigned to a different judge, that judge shall
transfer the case to the original judge. Al-
though rule 41(a)(1) guarantees IDT an un-
conditional dismissal, it does not confer on
IDT the right to manipulate the designation of
a judge.
The conditioned order of dismissal is
VACATED, and an unconditional order of dis-
missal is RENDERED, in accordance with this
opinion.2
2
Any worry that the grant of a dismissal with-
out prejudice might allow an undue advantage to
the plaintiff is addressed, also in rule 41(a)(1), by
the provision that “a notice of dismissal operates as
an adjudication upon the merits when filed by a
plaintiff who has once dismissed in any court of the
United States or of any state an action based on or
including the same claim.” FED. R. CIV. P.
41(a)(1).