Question about Ci Pro question 1 in Strategies & Tactics
Posted: Wed Nov 16, 2016 1:50 am
I have a question about Civil Procedure Questions 1 in Strategies and Tactics for the MBE (Sixth Edition).
The question 1 was about "two dismissal rule" and Rule 41(a)(1)(B). The plaintiff voluntarily dismissed the same claim twice, one in state court and one in federal court. So the second dismissal indeed operated as an “adjudication on the merits.”
However, one sentence in the answer stated that:
"Note, by the way, how 41(a)(1)(B) refers to a previous dismissal of a “federal- or state-court action”—so the fact that the first action was in state rather than federal court did not prevent the federal two-dismissal rule from operating. On the other hand, had the sequence been reversed, so that the first suit was in federal court and dismissed, and the second was a state action later dismissed, then 41(a)(1)(B) would not have applied, and the pedestrian would be allowed to bring a second federal action."
Why reverse of the sequence would have a different result?
The question 1 was about "two dismissal rule" and Rule 41(a)(1)(B). The plaintiff voluntarily dismissed the same claim twice, one in state court and one in federal court. So the second dismissal indeed operated as an “adjudication on the merits.”
However, one sentence in the answer stated that:
"Note, by the way, how 41(a)(1)(B) refers to a previous dismissal of a “federal- or state-court action”—so the fact that the first action was in state rather than federal court did not prevent the federal two-dismissal rule from operating. On the other hand, had the sequence been reversed, so that the first suit was in federal court and dismissed, and the second was a state action later dismissed, then 41(a)(1)(B) would not have applied, and the pedestrian would be allowed to bring a second federal action."
Why reverse of the sequence would have a different result?