Voluntary dismissal study questions

Read FRCP 41.

Questions:

  1. If an NOD is silent regarding its effect, is it with prejudice or without prejudice?
  2. Same question regarding an SOD.
  3. Can an NOD expressly state that it is with or without prejudice? Why might a plaintiff voluntarily file an NOD with prejudice?
  4. Same question regarding an SOD. Why would a plaintiff agree to an SOD with prejudice?
  5. Can a plaintiff file an NOD before the defendant serves an answer?
  6. Can a plaintiff file an NOD after the defendant serves a pre-answer motion to dismiss for failure to state a claim?
  7. Suppose the plaintiff files a suit and then dismisses by NOD. Plaintiff does it again. And again. And again. Is this fair to defendant? Can the court do anything to help the defendant?

Carefully read FRCP 41(a)(1) and 41(d) regarding multiple voluntary dismissals by the plaintiff. Note the distinction between a stipulation of dismissal (one agreed to by the parties) and a notice of dismissal (one done unilaterally by the plaintiff). Let’s call them SOD (stipulation of dismissal) and NOD (notice of dismissal).

Now let’s examine the effect of multiple dismissals by SOD or NOD (or a combination). Look at the four following scenarios. Assume that the plaintiff files and refiles the same claim against the same party. The question below, in each scenario, is whether the plaintiff can file a third suit, or is instead barred by the “Two Shot Rule.”

  1. Suit 1 dismissed by NOD
  2. Suit 2 dismissed by NOD
  3. Can plaintiff file suit 3?
  1. Suit 1 dismissed by SOD
  2. Suit 2 dismissed by SOD
  3. Can plaintiff file suit 3?
  1. Suit 1 dismissed by SOD
  2. Suit 2 dismissed by NOD
  3. Can plaintiff file suit 3?
  1. Suit 1 dismissed by NOD
  2. Suit 2 dismissed by SOD
  3. Can plaintiff file suit 3?

Posted March 27, 2015; revised Oct. 23, 2023 (removing outdated reference to old edition of casebook).