Writ of Certiorari Denied May 25, 1953. See 73 S.Ct. 949.
AUGUSTUS N. HAND, Circuit Judge.
This action was brought on December 5, 1952 by Harvey Aluminum Inc. (hereafter referred to as "Harvey"), against American Cyanamid Company (hereafter referred to as "Cyanamid") seeking specific performance of an alleged agreement to sell the tangible assets of Cyanamid's subsidiary
The plaintiffs contend that their attempted voluntary dismissal without a court order was authorized by Rule 41(a) 1 of the Federal Rules of Civil Procedure, 28 U.S.C., which provides that: "* * * an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment * * *." The purpose of this rule is to facilitate voluntary dismissals, but to limit them to an early stage of the proceedings before issue is joined. 5 Moore's Fed.Practice 1007 (2d ed.). The amount of research and preparation required of defendants was stressed by the Committee Note when Rule 41(a) 1 was amended in 1948 as a reason for adding the reference to a motion for summary judgment. 5 Moore's Fed.Practice 1005 (2d ed.). The hearing before Judge Sugarman on the plaintiff's motion for a preliminary injunction required several days of argument and testimony, yielding a record of some 420 pages. Further, the merits of the controversy were squarely raised and the district court in part based its denial of the injunction on its conclution that the plaintiffs' chance of success
Plaintiffs make the further contention that they at least had the right to dismiss their claim against Reynolds alone under Rule 41(a) 1, since Reynolds did not participate in the proceeding relative to the motion for a preliminary injunction, and had not answered or made a motion for summary judgment when the notice of dismissal was given. However, Rule 41(a) 1 provides for the voluntary dismissal of an "action" not a "claim"; the word "action" as used in the Rules denotes the entire controversy, whereas "claim" refers to what has traditionally been termed "cause of action." Rule 21 provides that "Parties may be dropped or added by order of the court on motion * * *" and we think that this rule is the one under which any action to eliminate Reynolds as a party should be taken. See, e. g., Weaver v. Marcus, 4 Cir., 165 F.2d 862, 175 A.L.R. 1305; O'Neal v. Teeter, D.C.N.D.Ill., 11 F.R.D. 180; Savoia Film S. A. I. v. Vanguard Films, D.C.S.D.N.Y., 10 F.R.D. 64; but cf. Young v. Wilky Carrier Corp., 3 Cir., 150 F.2d 764. Moreover, since the complaint seeks specific performance of the contract to sell the assets of Berbice, which are now in the possession of Reynolds, the latter would seem to be an indispensable party, see Note, 65 Harv.L.Rev. 1050. Doubtless Reynolds would not be an indispensable party if plaintiffs amended their complaint to as to seek monetary relief from Cyanamid for breach of contract, but the case should be judged from the record as it now stands. Accordingly, the order of the district court is reversed and the case is remanded with directions to vacate the notice of dismissal, and with leave to the plaintiffs to move to dismiss the action under Rule 41 (a) 2.
The defendants also appeal from the denial of their motion for a preliminary injunction against the bringing by plaintiffs of legal proceedings elsewhere involving the same issue and ask that this court issue the injunction on the ground that irreparable harm will result if proceedings are also brought in British Guiana requiring the presence there of many of their officers. Presumably the denial by the district court of this motion was not in the exercise of its discretion but was based on the fact that the court regarded the action as no longer before it. Since we have held that the attempted dismissal was ineffective, the denial of the motion for a temporary injunction must also be reversed. We think that the district court has discretion to enjoin another action in British Guiana on the ground of vexatiousness. See Gage v. Riverside Trust Co., C.C.S.D.Cal., 86 F. 984; cf. Higgins v. California Prune & Apricot Growers, Inc., 2 Cir., 282 F. 550. Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 does not govern, for there the statutory prohibition of § 265 of the Judicial Code, amended in 1948, 28 U.S.C. § 2283, against the enjoining by federal courts of state court proceedings was under consideration. But since the property involved in the controversy is located in British Guiana, defendant Berbice is a corporation organized under the laws of British Guiana, and defendant Reynolds is now undertaking to do business there, we think that it may well be doubted whether a second proceeding would in fact be unduly vexatious but that it is for the district court to decide the question in the exercise of its discretion. See e. g., State of Alabama v. United States, 279 U.S. 229, 230-231, 49 S.Ct. 266, 73 L.Ed. 675; United States v. Corrick, 298 U.S. 435, 437-438, 56 S.Ct. 829, 80 L.Ed. 1263. Moreover, the defendants have instituted a proceeding in British Guiana to obtain the consent of the British government to the transfer of certain leases. The plaintiffs assert that to protect any rights
Reversed and remanded.