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25. Will the artist be permitted to file her suit again?
An artist brought a breach of contract claim against a museum in federal court. After the suit was filed, the artist never sought discovery, did not make any motions, and took no steps to either resolve the case or bring it to trial. Two years after the suit was filed, the court dismissed the artist's claim for failure to prosecute the action. The court's dismissal order did not address the effect of that dismissal. The artist had not previously dismissed a lawsuit with the same claim prior to the court's dismissal of this action.
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Federal Rule of Civil Procedure (FRCP) 41(b) governs the question of whether claim preclusion should bar a plaintiff whose initial suit ended in an involuntary dismissal from proceeding with a subsequent suit on the same claim. FRCP 41(b) establishes that an involuntary dismissal generally will bar a subsequent suit, but both the Rule and court decisions create exceptions where claim preclusion does not apply.
FRCP 41(b) provides three grounds for ordering an involuntary dismissal:
(i) failure of the plaintiff to prosecute;
(ii) failure of the plaintiff to comply with the FRCP or any order of the court; AND/OR
(iii) failure of the plaintiff to show by the close of his evidence a right to relief based upon the facts and the law.
FRCP 41(b) further specifies that all 41(b) dismissals and «any dismissal not provided for in this rule» are to operate as adjudications on the merits except for four types of dismissals. The four exceptions are:
(i) dismissal for lack of jurisdiction;
(ii) dismissal for improper venue;
(iii) dismissal for failure to join a party under Rule 19; AND
(iv) dismissal that the court in its order specifies to be without prejudice.
D is correct. Courts have the power to order involuntary dismissals on their own motion if the plaintiff fails to comply with the court's orders or fails to prosecute their own claim. Under FRCP 41(b), an involuntary dismissal for failure to prosecute will operate as an adjudication on the merits.
Here, the practical effect of the court's sua sponte involuntary dismissal of the artist's claim for his failure to prosecute is that the artist will not be able to re-assert his claim again in a newly filed action.
A is incorrect. This is the standard for a voluntary dismissal by the plaintiff. If the artist had voluntarily dismissed his claim, he could have re-asserted his claim in a newly filed action. However, as explained above, the court involuntarily dismissed the artist's claim. This involuntary dismissal will operate as an adjudication on the merits, and the artist cannot assert his claim again in another action.
B is incorrect. It makes no difference whether the artist has or has not already dismissed a lawsuit that included the same claim prior to the federal court's dismissal. This confuses FRCP 41(a)(1)(B) concerning voluntary dismissals with involuntary dismissals.
C is incorrect. While the artist MAY appeal, an appellate court's denial of her appeal would not change the fact that the involuntary dismissal was a dismissal with prejudice and operates as an adjudication on the merits.