Island Stevedoring, Inc. v. Barge CCBI, 16 Fed. R. Serv. 3d 475 (D.P.R. 1990). · Go Syfert
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Island Stevedoring, Inc. v. Barge CCBI, 16 Fed. R. Serv. 3d 475 (D.P.R. 1990). Cases Citing This Book View Copy Cite
11 citation events (6 in the last 25 years) across 7 distinct courts.
Strongest positive: Feature Realty, Inc. v. KIRKPATRICK & LOCKHART PRESTON GATES ELLIS (wash, 2007-08-09) · Strongest negative: Lake At Las Vegas Investors Group, Inc. v. Pacific Malibu Development Corp. (ca9, 1991-08-23)
Top citers, strongest first. 9 distinct citers.
cited Cited "but see" Lake At Las Vegas Investors Group, Inc. v. Pacific Malibu Development Corp.
9th Cir. · 1991 · signal: but see · confidence high
See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Randall, 110 F.R.D. 499, 500 (E.D.Cal.1986); but see Island Stevedoring, Inc. v. Barge CCBI, 129 F.R.D. 430, 432 (D.P.R.1990). 29 Sutton Place Dev.
cited Cited "but see" Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Development Corp.
9th Cir. · 1991 · signal: but see · confidence high
See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Randall, 110 F.R.D. 499, 500 (E.D.Cal.1986); but see Island Stevedoring, Inc. v. Barge CCBI, 129 F.R.D. 430, 432 (D.P.R.1990).
discussed Cited as authority (rule) Feature Realty, Inc. v. KIRKPATRICK & LOCKHART PRESTON GATES ELLIS
Wash. · 2007 · confidence medium
Corp. v. Newton, 183 F.3d 1265 , 1267 (11th Cir.1999) (first dismissal by court order); Poloron Prods., Inc. v. Lybrand Ross Bros. & Montgomery, 534 F.2d 1012, 1017 (2d Cir.1976) (first dismissal by stipulation); Loubier v. Modern Acoustics, Inc., 178 F.R.D. 17, 20 (D.Conn.1998) (first dismissals by court order); Island Stevedoring, Inc. v. Barge, CCBI, 129 F.R.D. 430, 432 (D.P.R.1990) (second dismissal by court order). ¶ 10 Our holding in Specialty Auto is in line with our own circuit's interpretation of the two-dismissal rule.
discussed Cited as authority (rule) Feature Realty, Inc. v. Kirkpatrick & Lockhart Preston Gates Ellis, LLP
Wash. · 2007 · confidence medium
Conn. 1998) (first dismissals by court order); Island Stevedoring, Inc. v. Barge CCBI, 129 F.R.D. 430, 432 (D.P.R. 1990) (second dismissal by court order). ¶10 Our holding in Specialty Auto is in line with our own circuit’s interpretation of the two-dismissal rule.
discussed Cited as authority (rule) Sysco Corp. v. Chi-Chi's, Inc. (In Re Chi-Chi's, Inc.)
Bankr. D. Del. · 2006 · confidence medium
Island Stevedoring, Inc. v. Barge CCBI, 129 F.R.D. 430, 432 (D.P.R.1990); TCW Special Credits v. FISHING VESSEL CHLOE Z, 2000 WL 1277922 , *2 (9th Cir.2000) (holding that although a prior dismissal “was not formally ‘stipulated,’ it was not unilateral as all parties tacitly agreed to the dismissal in favor of litigating the action” elsewhere, and that there was “no *625 evidence that the filings and dismissals were part of a strategy to harass” the defendant); Ater ex rel.
cited Cited as authority (rule) Western Group Nurseries, Inc. v. Ergas
S.D. Fla. · 2002 · confidence medium
Co., 826 F.2d 637, 641 (7th Cir.1987); Poloron Products, Inc., 534 F.2d at 1017 ; Island Stevedoring, Inc. v. Barge CCBI, 129 F.R.D. 430, 431 (D.P.R.1990).
discussed Cited as authority (rule) New Jersey Ex Rel. Lennon v. Strazzella
Md. · 1993 · confidence medium
Co. v. Abacus Mortgage Investment Company, 826 F.2d 637, 640 (7th Cir.1987) (Two dismissal rule inapplicable where second dismissal was by court order, on motion of plaintiff, rather than by notice); Poloron Product, Inc. v. Lybrand & Ross Bros. & Montgomery, 534 F.2d 1012, 1017 (7th Cir.1976) (“Filing of a notice of dismissal preceded by a dismissal by stipulation knowingly consented to by all parties did not activate the ‘two dismissal’ bar against bringing an action based on or including the same action.”); American *280 Cyanamid v. McGhee, 317 F.2d 295, 297 (5th Cir.1963) (“A vol…
cited Cited as authority (rule) Bolivar v. Pocklington
D.P.R. · 1991 · confidence medium
Medina v. Chase Manhattan Bank, 737 F.2d 140, 143 (1st Cir.1984); Island Stevedoring, Inc. v. Barge CCBI, 129 F.R.D. 430, 431-432 (D.P.R.1990).
discussed Cited "see, e.g." Loubier v. Modern Acoustics, Inc.
D. Conn. · 1998 · signal: see also · confidence medium
See also Island Stevedoring, Inc. v. Barge CCBI, 129 F.R.D. 430, 431 (D.P.R.1990) (holding that two-dismissal rule did not apply where first dismissal resulted from negotiations and a consent agreement among the parties); Ham v. Park, 110 Ohio App.3d 803 , 675 N.E.2d 505, 512 (1996) (holding that Ohio’s two-dismissal rule, which is substantially the same as Fed.R.Civ.P. 41, did not apply to either Ohio Civ.R. 41(A)(2) or (B).
ISLAND STEVEDORING, INC.
v.
The BARGE CCBI, her appurtenances, engines, tackle, etc., in rem, and Anderson Steamship Agency, Inc., in personam
Civ. No. 90-1143 (JAF).
District Court, D. Puerto Rico.
Feb 8, 1990.
16 Fed. R. Serv. 3d 475
José F. Sárraga, San Juan, P.R., for plaintiff., José E. Alfaro-Delgado, Calvesbert & Brown, San Juan, P.R., for defendants.
Fuste.
Cited by 9 opinions  |  Published

OPINION AND ORDER

FUSTE, District Judge.

Defendant Bordelon Brothers Towing Company (“BORDELON”) asks this court to dismiss the action filed by plaintiff Island Stevedoring, Inc. (“ISLAND”) pursuant to Rule 41 of the Federal Rules of Civil Procedure. Specifically, BORDELON invokes the “two dismissal” rule contained in Fed.R.Civ.P. 41(a)(1).[1] We find the grounds asserted by BORDELON without merit and consequently, deny the motion.

I. Procedural Background

BORDELON is the owner pro hac vice of Barge CCBI. ISLAND alleges that it rendered stevedoring services, valuing $39,925.84, to Barge CCBI on July 4-5, 1989 and September 16-17,1989 at the Port of San Juan. ISLAND, asserting it was never paid for those services, filed an action styled Island Stevedoring, Inc. v. The Barge “CCBI" in rem and Anderson Steamship Agency, Inc. in personam, Civ. No. 89-0127 (JAF) before this court.

At that time, however, Barge CCBI was under attachment by Transcaribbean Maritime Corp. as a result of the action it filed in Transcaribbean- Maritime Corp. v. Barge CCBI, in rem, Civ. No. 89-1201 (JP). ISLAND filed a Motion Concerning Execution of Warrant of Arrest in Civil No. 89-1270 (JAF) advising this court that it was filing an intervening complaint in Civil No. 89-1201 (JP). ISLAND asked this court to stay proceedings in Civ. No. 89-1271 (JAF) pending the results of Civ. No. 89-1201 (JP).

On October 2, 1989 ISLAND dismissed its intervening complaint in Civ. No. 89-1201 (JP) after negotiating and consenting to the terms of release from arrest of Barge CCBI. As a result, Civ. No. 1270 (JAF) also was ultimately dismissed without prejudice.[2] After not being paid pursuant to the release agreement arrived at in Civ. No. 89-1201 (JP), ISLAND filed the instant action. BORDELON argues that the two earlier dismissals preclude ISLAND from filing this complaint, citing Fed.R.Civ.P. 41(a)(1) and (b).

II. Discussion

Fed.R.Civ.P. 41(a)(1) allows dismissal of an action by notice or stipulation without prejudice. However, the Rule also[*432] states 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.” This provision, commonly referred to as the “two dismissal” rule, prohibits the institution of a third action on the same claim.

However, by the terms of Rule 41(a)(1), the two dismissal rule does not apply where the second dismissal was made by a motion and granted by court order. 9 C. Wright & A. Miller, Federal Practice and Procedure § 2368, at 188 (1971); see also Sutton Place Development Co. v. Abacus Mortg. Inv. Co., 826 F.2d 637, 640 (7th Cir.1987). The second dismissal in question here, Civ. No. 89-1201 (JAF), was executed by a court order that was subsequently amended to specify that the dismissal was without prejudice to prior plaintiff, ISLAND.[3] Thus, we find that the two dismissal rule does not prevent ISLAND’S action currently before this court.

Even were we to find that the second dismissal was voluntary or by notice as required by the language of Rule 41(a)(1), we would still find the two dismissal rule inapplicable. A second dismissal as contemplated by this provision preceded by a dismissal by stipulation knowingly consented to by all the parties does not trigger the two dismissal rule. 9 C. Wright & A. Miller, Federal Practice and Procedure § 2368, at 188 (1971); Poloron Products, Inc. v. Lybrand Ross Bros, and Montgomery, 534 F.2d 1012, 1018 (2d Cir.1976). The rationale for this exception stems from the underlying policy of the rule. The primary purpose of the “two dismissal” rule is to prevent an unreasonable use of the plaintiff’s unilateral right to dismiss an action prior to the filing of defendant’s responsive pleading. Poloron Products, 534 F.2d at 1017. However, the danger of abuse of this right lessens when the original dismissal stems from mutual agreement. Id.

While the parties did not file a formal stipulation, the record in the case clearly indicates that the first dismissal resulted from negotiations and a consent agreement among the parties. See Plaintiff’s Motion in Opposition, Exhibits 1-8, Docket Document No. 8. BORDELON, however, by insisting on a formal stipulation, asks this court to swear allegiance to the language of Rule 41(a)(1) at the expense of its underlying policy. This we refuse to do. As stated in Poloron Products:

“[w]here the purpose behind the ‘two dismissal’ exception would not appear to be served by its literal application, and where that application’s effect would be to close the courthouse doors to an otherwise proper litigant, the court should be most careful not to construe or apply the exception too broadly.” 534 F.2d at 1017.

Consequently, we find that the first dismissal was in essence, if not in form, by stipulation. The two dismissal rule, therefore, does not apply.

Based on the foregoing, we DENY defendant’s motion to dismiss the complaint.

IT IS SO ORDERED.

1

We find it inappropriate to discuss defendant's other arguments, i.e., waiver of lien, at this stage in the litigation.

2

This court originally dismissed Civ. No. 89-1270 with prejudice for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). The "failure to prosecute”, however, was simply a delay by ISLAND’S counsel in informing us promptly of the result in Civ. No. 89-1201 (JP). Thus, the dismissal with prejudice may have been a hasty and harsh result. Consequently, after being informed by ISLAND of the release agreement in Civ. No. 89-1201 (JP), this court amended its judgment nunc pro tunc to provide for dismissal without prejudice.

3

Defendant argues that the original dismissal, with prejudice, in Civ. No. 89-1270 (JAF), is a “court order” and that the amended order granting ISLAND'S motion for relief from the order was the "second dismissal” for Rule 41(a)(1) purposes. We reject this argument as it, in reality, seeks to prejudice ISLAND for the inappropriate first dismissal entered by this court.