Steven I. Kotzen & Nat'l Patient Aids, Inc. v. Sam J. Levine & Marian P. Levine, 678 F.2d 140 (11th Cir. 1982). · Go Syfert
Search
Steven I. Kotzen & Nat'l Patient Aids, Inc. v. Sam J. Levine & Marian P. Levine, 678 F.2d 140 (11th Cir. 1982). Cases Citing This Book View Copy Cite
25 citation events (16 in the last 25 years) across 8 distinct courts.
Strongest positive: Jerlard Derek Rembert v. Attorney General, State of Florida (ca11, 2021-12-22)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
cited Cited as authority (rule) Jerlard Derek Rembert v. Attorney General, State of Florida
11th Cir. · 2021 · confidence medium
Kotzen v. Levine, 678 F.2d 140, 140 (11th Cir. 1982).
discussed Cited as authority (rule) Walona S. Heath v. Terrell County School District (2×) also: Cited "see"
11th Cir. · 2020 · confidence medium
Kotzen v. Levine, 678 F.2d 140, 140 (11th Cir. 1982).
cited Cited as authority (rule) Jenkins v. Hutcheson
11th Cir. · 2018 · confidence medium
Kotzen v. Levine, 678 F.2d 140, 140 (11th Cir. 1982).
discussed Cited as authority (rule) Andrea K. Silverthorne v. Allan Yeaman (2×) also: Cited "see"
11th Cir. · 2016 · confidence medium
Kotzen v. Levine, 678 F.2d 140, 140 (11th Cir. 1982).
cited Cited as authority (rule) Elijah Jackson, Jr. v. Florida Department of Corrections
11th Cir. · 2012 · confidence medium
Kotzen v. Levine, 678 F.2d 140, 140 (11th Cir.1982).
discussed Cited as authority (rule) Westlands Water District v. United States
9th Cir. · 1996 · confidence medium
See Hyde & Drath, 24 F.3d at 1169 ; Hamilton, 679 F.2d at 145 ; see also American Nat’l Bank & Trust Co. of Sapulpa v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir.1991); Conafay v. Wyeth Laboratories, 841 F.2d 417, 419 (D.C.Cir.1988) (per curiam); Kotzen v. Le vine, 678 F.2d 140, 140 (11th Cir.1982) (per curiam); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976); 9 Charles A. Wright & Arthur R.
discussed Cited as authority (rule) Westlands Water District v. United States
9th Cir. · 1996 · confidence medium
See Hyde & Drath, 24 F.3d at 1169 ; Hamilton, 679 F.2d at 145 ; see also American Nat'l Bank & Trust Co. of Sapulpa v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir.1991); Conafay v. Wyeth Laboratories, 841 F.2d 417, 419 (D.C.Cir.1988) (per curiam); Kotzen v. Levine, 678 F.2d 140, 140 (11th Cir.1982) (per curiam); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976); 9 Charles A. Wright & Arthur R.
discussed Cited as authority (rule) Roemelmeyer v. Royal Crown Bottling Co. of Florida (In re LJP, Inc.)
Bankr. S.D. Florida · 1983 · confidence medium
In Kotzen v. Levine, 678 F.2d 140, 141 (11th Cir.1982) the court affirmed the dismissal without prejudice on a motion for a directed verdict of an action on promissory notes because the documentary stamp tax had not been paid on the notes.
discussed Cited as authority (rule) Mechmetals Corp. v. Telex Computer Products, Inc.
9th Cir. · 1983 · confidence medium
Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217 , 67 S.Ct. 752, 755 , 91 L.Ed. 849 (1947); see Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir.1982); Kotzen v. Levine, 678 F.2d 140, 141 (11th Cir.1982).
discussed Cited as authority (rule) Mechmetals Corporation v. Telex Computer Products, Inc.
9th Cir. · 1983 · confidence medium
Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217 , 67 S.Ct. 752, 755 , 91 L.Ed. 849 (1947); see Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir.1982); Kotzen v. Levine, 678 F.2d 140, 141 (11th Cir.1982).
cited Cited "see" JACKSON v. INCH
N.D. Fla. · 2021 · signal: see · confidence high
See Kotzen v. Levine, 678 F.2d 140 (11th Cir. 1982).
cited Cited "see" WENK v. HOOPER
N.D. Fla. · 2019 · signal: see · confidence high
See Kotzen v. Levine, 678 F.2d 140 (11th Cir. 1982).
cited Cited "see" Beth B. Pontenberg v. Boston Scientific
11th Cir. · 2001 · signal: see · confidence high
See Kotzen v. Levine, 678 F.2d 140 , 140 n. 3 (11th Cir.1982). 2 .
cited Cited "see" Somma v. Metra Electronics Corp.
Fla. Dist. Ct. App. · 1999 · signal: see · confidence high
See Kotzen v. Levine, 678 F.2d 140 (11th Cir.1982).
cited Cited "see" Equilease Corp. v. AAA MacHine Co. (In Re AAA MacHine Co.)
Bankr. S.D. Florida · 1983 · signal: see · confidence high
See Kotzen v. Levine, 678 F.2d 140 at 141 (11 Cir.1982) stating that promissory notes were unenforceable unless the taxes due on the notes were paid.
Retrieving the full opinion text from the archive…
Steven I. KOTZEN and National Patient Aids, Inc., Defendants-Appellants,
v.
Sam J. LEVINE and Marian P. Levine, Plaintiffs-Appellees
81-5549.
Court of Appeals for the Eleventh Circuit.
Jun 11, 1982.
678 F.2d 140
Chansen & Chansen, Andrew M. Chansen, Fort Lauderdale, Fla., for defendants-appellants., Lewis S. Kimler, Peter Weintraub, Deer-field Beach, Fla., for plaintiffs-appellees.
Godbold, Johnson, Anderson.
Cited by 21 opinions  |  Published
[*141] PER CURIAM:

Sam and Marian Levine sued Steven Kot-zen and National Patient Aids, Ine., to recover on certain promissory notes. The district court, sitting with a jury, found that under Florida Statutes Annotated § 201.08 the notes were unenforceable unless taxes due on the notes were paid. Since plaintiffs presented no evidence that the taxes had been paid, the court granted defendants’ motion for a directed verdict, made at the end of plaintiffs’ case in chief, [1] and dismissed the suit without prejudice. Defendants appeal, asserting that the dismissal should have been with prejudice. They did not object below to the court’s action. Assuming that they preserved this issue for appeal, we find their contentions without merit.

Dismissal without prejudice on a motion for a directed verdict is, admittedly, extremely rare. Cases and commentators make clear, however, that a court receiving a motion for a directed verdict under Fed.R. Civ.P. 50(a) may deny that motion and instead permit plaintiff voluntarily to have his claim dismissed without prejudice under Fed.R.Civ.P. 41(a)(2). Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217, 67 S.Ct. 752, 755, 91 L.Ed. 849 (1947); Advisory Comm. Notes on 1963 Amendments to Rule 41; 5 & 5A J. Moore & J. Lucas, Moore’s Federal Practice § 41.05[1], at 41-61 — 41-62, § 50.63[1], at 50-43 (1982); 9 C. Wright & A. Miller, Federal Practice and Procedure § 253, at 585 (1971); cf. Safeway Stores v. Fannan, 308 F.2d 94, 99 (9th Cir. 1962) (court receiving motion under Rule 50(a) may dismiss without prejudice under Rule 41(b). [2] Although the district court here styled its ruling as a directed verdict, we treat it, according to its actual effect, as permitting plaintiffs to dismiss without prejudice under Rule 41(a)(2). [3] We will reverse only for abuse of discretion; that discretion must be guided by “the traditional principle that dismissal should be allowed unless the defendant will suffer some plain prejudice other than the mere prospect of a second law suit. It is no bar to dismissal that plaintiff may obtain some tactical advantage thereby.” Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967) (quoting 2 Barron & Holtzoff, Federal Practice and Procedure § 912 (Wright ed.) (emphasis added)); accord, LeCompte v. Mr. Chips, Inc., 528 F.2d 601, 604 (5th Cir. 1976); Holiday Queenland Corp. v. Baker, 489 F.2d 1031, 1032 (5th Cir. 1974).

We find no abuse of discretion. Dismissal here was because of a technical failure of proof, a situation in which the Supreme Court has noted that action such as the district court took is proper. Cone, supra, 330 U.S. at 217, 67 S.Ct. at 755. Defendants have not suggested that there was any prejudice to them, and we can find none.

The judgment of the district court is AFFIRMED.

1

. Defendants actually made a motion for involuntary dismissal under Fed.R.Civ.P. 41(b). The court orally granted that motion. The court styled its written order, however, as a grant of a motion for a directed verdict, correctly reflecting that Rule 41(b), by its explicit language, is inapplicable in jury trials.

2

. At the time Safeway Stores was issued, Rule 41(b) could be applied to both jury and non-jury cases. See Weissinger v. United States, 423 F.2d 795, 797 (5th Cir. 1970) (en banc); 9 Wright & Miller, supra, § 2371, at 218. In 1963 the rule was amended to limit its application only to non-jury cases.

3

. Under the circumstances at issue here, the court may act sua sponte to dismiss under Rule 41(a)(2). It need not await a motion from the plaintiff to permit voluntary dismissal without prejudice. See 9 Wright & Miller, supra, § 2533, at 585 (“[T]he court has discretion, on its own motion, to grant a dismissal without prejudice.”). Since the alternative to the court’s action would be a directed verdict against plaintiffs on the merits, we assume that plaintiffs agree with the dismissal without prejudice.