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MILLER v. STANDARD OIL CO.

January 22, 1952

MILLER
v.
STANDARD OIL CO.



The opinion of the court was delivered by: Perry, District Judge.

On October 4, 1951, the libelant filed this action, alleging that he slipped and fell in the fantail compartment of the respondent's steamer Robert W. Stewart on December 21, 1944, while the vessel was docked upon the waters of Lake Michigan at the port of East Chicago, Indiana. He further alleges that he was discharging specific duties as a seaman when the incident occurred. Injuries are also alleged. The libelant seeks the sum of $12,000 for maintenance and cure.

On December 30, 1947, the libelant filed a civil action against this respondent in the United States District Court for the Northern District of Illinois. The complaint alleged two causes of action. The first was a negligence action pursuant to the provisions of the Jones Act 46 U.S.C.A. § 688; the second was a civil action for maintenance and cure. On May 21, 1948, the defendant's defense of the statute of limitations as to the claim for negligence pursuant to the Jones Act was sustained; it was dismissed with prejudice.

On June 17, 1948, this libelant was granted leave to transfer the remaining claim of the civil action for maintenance and cure to the admiralty side. Accordingly the libelant filed his amended complaint setting up a cause of action in admiralty for maintenance and cure — a claim which is identical with the instant claim. The earlier case bore the number 47 C 1889. On September 22, 1949, on motion of the defendant, Judge LaBuy dismissed the earlier action for want of prosecution. Written notice of this order was sent to libelant's counsel on September 22, 1949.

The respondent has filed "Exception to the Libel" wherein he alleges:

1. That dismissal of the identical action (47 C 1889) on September 22, 1949, constituted an adjudication on the merits and therefore the claim in the instant libel is res adjudicata.

2. That this action is barred by the statute of limitations and laches.

I. The defense of res judicata. The respondent, in advancing this defense, relies upon Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. which provides in substance that a defendant in a civil action may move for dismissal when the plaintiff fails to prosecute, and that, "unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits." The respondent contends that the order of the District Court dismissing the prior action for want of prosecution constituted an adjudication on the merits because that order did not specify that the dismissal was "without prejudice."

The libelant's claim for maintenance and cure in that action, however, was joined with a claim for personal injuries pursuant to the provisions of the Jones Act 46 U.S.C.A. § 688. After the libelant's claim under the Jones Act had been dismissed, there remained a claim for maintenance and cure, subject to the jurisdiction of admiralty. On June 17, 1948, the complaint was amended and the cause was ordered transferred to the admiralty side. On September 22, 1949, when the order of dismissal for want of prosecution was entered, that claim was then a suit in admiralty and not a civil action. The Federal Rules of Civil Procedure do not apply to suits in admiralty. Rule 81(a); Mercado v. United States, 2 Cir., 184 F.2d 24.

The rule which was applied in the order of dismissal for want of prosecution of the claim for maintenance and cure in case "47 C 1889" is rule 38 of the Rules of Practice in Admiralty and Maritime Cases, 28 U.S.C.A. which provides as follows:

    "Dismissal for failure to prosecute. If, in any
  admiralty suit, the libellant shall not appear
  and prosecute his suit, and comply with the
  orders of the court, he shall be deemed in
  default and contumacy; and the court may, on the
  application of the respondent or claimant,
  pronounce the suit to be deserted, and the same
  may be dismissed with costs."

For the purpose of consideration of the respondent's defense of res judicata, one must examine the effect of a dismissal under this rule. Will such a dismissal constitute an adjudication upon the merits and consequently bar any subsequent action on the same claim?

At the common law, a judgment of "non prosequitur" was not an adjudication upon the merits, and consequently did not operate as a bar to a subsequent action on the same claim, Homer v. Brown, 16 How. 354, 57 U.S. 354, 14 L.Ed. 970. A prior judgment must be rendered upon the merits, otherwise it cannot support a plea of res judicata. Hughes v. United States, 4 Wall. 232, 71 U.S. 232 18 L.Ed. 303; Manhattan Life Insurance Co. v. Broughton, 109 U.S. 121, 3 S.Ct. 99, 27 L.Ed 878.

Prior to the adoption of the Federal Rules of Civil Procedure, the Federal Courts have uniformly held that the dismissal of an action for want of prosecution is not a bar to a subsequent action because there has been no adjudication upon the merits. Haldeman v. U.S. 91 U.S. 584, 23 L.Ed. 433; Gilbert, Sheriff, v. American Surety Co., 7 Cir., 121 F. 499, 61 L.R.A. 253; Gardner v. U.S. 9 Cir., 71 F.2d 63, certiorari denied 293 U.S. 619, 55 S.Ct. 213, 79 L.Ed. 707; Krause v. Mississippi Coal Corp., 7 Cir., 93 F.2d 515. Even the addition of the words "with prejudice" in the order of dismissal could not change the effect of the order because the fact still remained that an order of dismissal for want of prosecution was not a decision upon the merits. Pueblo de Taos v. Archuleta, 10 Cir., 64 F.2d 807.

Any attempt to construe an order of dismissal for want of prosecution, entered in accordance with a procedural rule or statute, as an adjudication on the merits and consequently, a bar to a subsequent action, derogates from the common law. In the determination of the validity of such a construction, one must look to the applicable rule or statute for support; and, since such a ...


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