30 L. Ed. 601, 7 S. Ct. 454 (1887) (quoting 3 W. Blackstone, Commentaries 296). Whether retraxit survived the advent of the Federal Rules of Civil Procedure is unclear, although F.R.Civ.P. 41 apparently encompasses a modernized form of the doctrine.
Once a defendant has answered a complaint or filed a motion for summary judgment, Rule 41 characterizes dismissals of actions as either voluntary by court order under 41(a)(2), which are presumed to be without prejudice, or involuntary under 41(b), which are presumed to be with prejudice. A court ordering dismissal can override these presumptions by specifying that the dismissal is with prejudice under 41(a)(2), or without prejudice under 41(b).
Here, Agfa's withdrawal of its "best efforts" claim was voluntary, making 41(a)(2) applicable. The judge clearly approved the withdrawal, but did not state explicitly whether the withdrawal was with prejudice. This court finds, however, that the judge's comments and those of counsel for both parties during the instructions conference reflect an intention by all concerned that the withdrawal be with prejudice. The judge stated at one point that "best efforts is not in the case," and Agfa's counsel expressly agreed. At that stage of the case, the judge could hardly have allowed dismissal of the claim without prejudice. See Villegas v. Princeton Farms, Inc., 893 F.2d 919, 924 (7th Cir. 1990) (abuse of discretion to dismiss without prejudice under Rule 41(a)(2) after judgment on the merits). Both sides had concluded their presentations of evidence to the jury. Each had a vested interest in having that jury decide the case. Agfa is not entitled to another chance to pursue the claim, and A.B. Dick can no longer be forced to defend against it.
This court's finding that Agfa's claim withdrawal was with prejudice is buttressed by the policy underlying Rule 41(b) and its presumption that dismissals under it are with prejudice. Rule 41(b) dismissals are considered adjudications on the merits for res judicata purposes because the rule applies in situations -- including failures to prosecute a claim, or failures to comply with court orders or procedural rules -- "in which the defendant must incur the inconvenience of preparing to meet the merits because there is no initial bar to the Court's reaching them." Costello v. United States, 365 U.S. 265, 286, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961). See also American National Bank & Trust Co. v. City of Chicago, 826 F.2d 1547, 1553 (7th Cir. 1987) ("The decision is on the merits . . . for purposes of preclusion when the litigant had an opportunity to receive an adjudication from that court. That he bollixed his opportunity by starting the suit too late or failing to prosecute it properly does not justify exposing the defendant to another round."), cert. denied, 484 U.S. 977, 108 S. Ct. 489, 98 L. Ed. 2d 487 (1987); Kimmel v. Texas Commerce Bank, 817 F.2d 39, 41 (7th Cir. 1987) (discussing Costello). The circumstances of Agfa's "best efforts" withdrawal are analogous to those underlying Rule 41(b) and its presumption that dismissals are on the merits. A.B. Dick not only was forced to prepare a "best efforts" defense, it had already presented that defense to the jury.
In sum, the court finds that Agfa is precluded from reviving its "best efforts" claim on remand, that there is no genuine issue of material fact regarding that claim, and therefore, A.B. Dick is entitled to summary judgment on that claim.
The court's finding that the dismissal of Agfa's "best efforts" claim was with prejudice makes it unnecessary to address A.B. Dick's alternative arguments.
For the above reasons, summary judgment is granted for defendant A.B. Dick on plaintiff Agfa's "best efforts" claim.
IT IS SO ORDERED.