ORR, Circuit Judge.
On the 4th day of April, 1958, appellant filed in the United States District Court of Oregon a complaint seeking damages for alleged breaches of three sub-contracts entered into with appellees.
On April 28, 1958, defendants served and filed their answer. No affirmative relief was sought.
The court denied the motion. Whether or not a dismissal will be granted is within the sound judicial discretion of the court. Ockert v. Union Barge Line Corp., 3 Cir., 1951, 190 F.2d 303; Rollison v. Washington National Ins. Co., 4 Cir., 1949, 176 F.2d 364. We think it follows that each case must be determined on its own particular facts. We find no abuse of discretion in the denial of this motion. There was no showing whatever in support of the motion. It was no more than a request. Counsel for appellants, other than the one making the first motion, evidently sensing the inadequacy of the showing made in support of said motion, on May 23, 1958 filed a second motion entitled "Motion for Reconsideration of and Renewing Plaintiff's Motion for a Voluntary Dismissal Without Prejudice pursuant to Rule 41(a) (2)." This motion was supported by an affidavit setting forth the reasons why the dismissal was desired. In essence the supporting affidavit stated: that plaintiff's attorney had erroneously concluded that the only forum available to appellants to obtain redress on its alleged causes of action was by an action in the United States District Court of Oregon, inasmuch as the appellees were residents of Oregon and could not be reached in a suit instituted in the state of Washington; that thereafter appellant's attorney determined that this theory was erroneous and further determined that his clients had a cause of action under the Miller Act, §§ 270a and 270b, 49 Stat. 793 (1935), 40 U.S.C.A. §§ 270a and 270b,
The trial court had before it this picture upon which to act in exercising its discretion whether to dismiss. The dismissal was desired in order to permit
The first cause of action was for damages for failure to complete the concrete lining of a tunnel in time. The second cause of action was also for failure to complete the concrete lining of a tunnel in time. The third cause of action was for reformation so as to include certain provisions for the method of lining the tunnels and a time element.
The Miller Act provides that the requirement of the bond shall be for insuring payment of all persons "supplying labor and material." (See note 2, supra). Appellees have argued that the causes of action alleged in the complaint in the Oregon Court could not have been brought under the Miller Act, hence the reasons given for dismissal had no validity. We expressly refrain from passing on this question. It is, we understand, before the District Court of Washington at this time. It should be noted, however, that the trial court in Oregon offered to dismiss the action there founded, as we have said, on breach of contract and for a reformation without prejudice if appellant would agree not to sue on said causes of action in Washington. What if any effect such an agreement would have had on the future right to litigate said causes of action in Oregon we are unable to say.
As against this lack of showing on the part of appellant, the trial court was justified in turning to the other side of the coin. The defendants have been brought into court in the State of their residence, a matter of great convenience to them. We understand that their witnesses reside in that jurisdiction. To require them to pull up stakes and move to another state would entail considerable additional expenses of hotel accommodations for the litigants and witnesses and the trial court could reasonably conclude that appellees' lawyers would require additional fees and expenses to travel to a foreign state to try the case. It may be argued that appellees would have been subjected to these same expenses had appellant seen fit to sue in Washington in the first instance. That may be so, but we think that a court in exercising its discretion as to whether a dismissal for the express purpose of allowing a plaintiff to bring an action in a foreign state should be granted, is entitled to consider whether a plaintiff should be allowed to snatch from a defendant certain monetary advantages and conveniences which appellant has conferred by its voluntary act.
After the denial of their motion to dismiss, appellant informed the court that they refused to proceed further. Appellant took this position at its peril. If the trial court was in error in refusing to dismiss without prejudice appellant was on safe ground, but on the other hand, as we find there was no abuse of discretion then the subsequent action of the court in dismissing the action with
The trial court set the case for pretrial conference on July 21, 1958. The matter came on for pre-trial conference on said date. No appearance was made for or on behalf of appellant. In view of the information given the court that appellant would not proceed further, it justifiably concluded that there was a failure to prosecute and dismissed the action with prejudice under Rule 17
Subsequent to the denial of the motion to dismiss and the later order of the trial court dismissing with prejudice, appellant endeavored to have this court by means of a Writ of Mandamus order the trial court to dismiss without prejudice. This court refused the Writ stating that in its opinion the trial court did not abuse its discretion. Later appellees endeavored to have this appeal dismissed on the ground that the refusal of the Writ of Mandamus controlled. A different panel of the court heard the motion to dismiss and denied it. This action in refusing to dismiss the appeal may have detracted from the controlling effect of the holding in the mandamus proceeding, but the finding by this court in the Mandamus action that the trial court did not abuse its discretion is at least persuasive.
Under the facts and circumstances presented, the judgment of dismissal with prejudice is affirmed.
JAMES ALGER FEE, Circuit Judge (concurring).
The trial court did not abuse its discretion in failing to permit dismissal after answer had been filed simply because counsel had changed his theory and believed he had a better chance to win in the federal court in Washington. The court had the right to consider the disadvantages arising to defendants by such action. This Court refused to issue a preliminary writ of mandamus upon the ground that discretion had not been abused but required appellant to go to trial in the action in Oregon.
Appellant continued to fence for advantage. After the mandamus proceeding had been dismissed, the trial court, by order dated May 19, 1958, set the case for formal pretrial conference on July 21, 1958. On July 17, appellant filed a motion where it declined to proceed further in the above action. The trial court dismissed the action with prejudice under Rule 17 of the Oregon District Court, which provides:
Irrespective of the question of abuse of discretion, the trial court had a right to dismiss the cause under this Rule because of the positive defiance of the order of the court setting the case for pretrial conference. All questions could have been raised at the pretrial conference, including that of the effect of an adjudication of this case upon the subsequent case which appellant had brought in the Eastern District of Washington.
The judgment of dismissal should be affirmed.
HEALY, Circuit Judge (dissenting).
I am not disposed to go along with my associates in this case. In my opinion the judgment below should be reversed.
On May 23, appellant filed a motion for reconsideration and renewal of the earlier motion for voluntary dismissal without prejudice, pursuant to statute. The motion was supported by affidavit of a Mr. Jerome Williams, primary attorney for plaintiff residing in the state of Washington, giving an elaborate statement of his reasons for the motion. A hearing was held on this motion on June 16, 1958, and in the course of the proceedings Mr. Williams among other things stated: "And, as I said in the affidavit, I am personally prepared to meet any damages which your Honor feels are warranted in the situation." The motion was thereafter on the same day denied, without opinion. On August 4, 1958, the district court dismissed the action with prejudice.
It is my opinion that the trial court was obliged to allow appellant to dismiss without prejudice pursuant to the Rule and that in dismissing with prejudice the court abused its discretion under the particular facts of this case.
Rule 41(a) (2) provides that an action shall not be dismissed at plaintiff's instance after answer has been filed except under order of the court and upon such terms and conditions as the court deems proper. Plaintiff can not dismiss as a matter of right after service of answer; and in ruling on a motion to dismiss an action without prejudice after service of answer the court is obliged to exercise a sound judicial discretion. Consult Home Owners' Loan Corp. v. Huffman, 8 Cir., 134 F.2d 314, 316. But, in exercising its discretion, the court is obliged to recognize the rule which has long been followed in both law and equity, and which has traditionally allowed voluntary dismissals without prejudice after payment of defendant's costs in a situation where defendant will not suffer any legal prejudice beyond incidental annoyance of a second litigation on the same subject. Home Owners' Loan Corp. v. Huffman, supra. This rule, governing the exercise of a trial court's judicial discretion, was reiterated by the Supreme Court in the case of Cone v. West Virginia Pulp & Paper Co., 1947, 330 U.S. 212, 217, 67 S.Ct. 752, 755, 91 L.Ed. 849. There the Court observed: "Take the case where a trial court is about to direct a verdict because of failure of proof in a certain aspect of the case. At that time a litigant might know or have reason to believe that he could fill the crucial gap in the evidence. Traditionally, a plaintiff in such a dilemma has had an unqualified right, upon payments of costs, to take a nonsuit in order to file a new action after further preparation, unless the defendant would suffer some plain legal prejudice other than the mere prospect of a second lawsuit."
Barron & Holtzoff
What burdens, one may ask, have appellees here borne which could not be adequately compensated by the imposition of terms and conditions? Here appellees had filed no counter claim and were asking no affirmative relief. Appellees had filed their answer only 22 days prior to appellant's motion for dismissal without prejudice pursuant to the Rules of Civil Procedure. No depositions or interrogatories had been taken or served. No witnesses had been transported to Oregon from distant places for trial. Indeed, the record shows that appellees had borne only the expense of answering, which burden could have been relieved by court order conditioning dismissal without prejudice.
Paragraph (1) of the subdivision 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, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action."
"270b. Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under section 270a of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last act of labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount * * * unpaid at the time of institution of such suit * * *."