Concept
Dismissals Not Provided For
Involuntary dismissal
Dismissals Not Provided For
Rule 41(b) governs more dismissals than the ones it names. Its second sentence provides that, unless the order states otherwise, a dismissal under the subdivision “and any dismissal not under this rule” operates as an adjudication on the merits, except for a dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19.1 Federal courts end cases on many grounds besides a plaintiff's neglect, and the rule lists only a few. A dismissal that the rule neither imposes for neglect nor excepts is a dismissal not provided for, and the clause quoted above claims it for the merits default.
Read literally, that clause would bar a later suit on the same claim after almost every dismissal whose order is silent. Courts have declined to read it that way, and the reason lies in why the default exists. The default protects a defendant who has incurred the inconvenience of preparing to meet the merits from suffering for the plaintiff's misstep.2 A court that dismisses because it is the wrong place to hear a claim has done something different. It has refused to decide the substantive issues, and the Fifth Circuit saw no apparent reason to forfeit the underlying claim because the plaintiff chose the wrong tribunal.3
For every unlisted dismissal, then, the question is whether the policy behind the neglect default applies with equal force. The first subsection below teaches the test the Fifth Circuit drew from Costello v. United States. The next two apply it to dismissals the rule never mentions: failure to state a claim, which carries merits effect under the federal default, and forum non conveniens, which does not bar the claim.
The Costello Test
The Fifth Circuit confronted the breadth of that clause in Baris v. Sulpicio Lines, Inc. An earlier federal court there had dismissed on forum non conveniens grounds in a judgment designated with prejudice, and the question was how far that dismissal reached.4 To answer it, the court sorted involuntary dismissals into three categories and relied on the principles announced in Costello.5
The first category consists of dismissals for the plaintiff's failure to prosecute or to comply with the rules or a court order, the grounds the first sentence of the rule describes.6 Circuit authority treats these as on the merits. The decisions the court cited include a dismissal for failure to prosecute, a holding that dismissal for failure to comply with discovery orders is on the merits, and a holding that dismissal for failure to appear at a deposition is on the merits.7 Costello supplied the policy: defendants should not suffer from a plaintiff's misstep once they have had to incur the inconvenience of preparing to meet the merits of the case.8 Letting the plaintiff refile would make the defendant pay for the same preparation twice.
The second category contains the three dismissals the rule excepts. Dismissals for lack of jurisdiction and for improper venue do not establish claim preclusion,9 and each exception rests on a defect that stood between the plaintiff and a decision on the claim, so the defendant was never put to the work of meeting the merits that the first category assumes. Costello itself fits here. The Supreme Court held that the dismissal there was for “lack of jurisdiction” under Rule 41(b), which left the government free to pursue a second proceeding, and it refused to confine the exception to the fundamental defects, such as lack of jurisdiction over the person or the subject matter, that render a judgment void.10
The third category is the one that needs a test. It consists of dismissals “not provided for in this rule,” and the Fifth Circuit's examples include a dismissal for failure to comply with a federal rule that the court enters on its own motion.11 The court applied Costello's principles to the forum non conveniens dismissal before it as well. Costello's limiting principle governs the whole category: a dismissal not provided for operates as an adjudication on the merits only where the policy supporting first-category dismissals is “equally applicable.”12 The merits default therefore does not follow from the words “not under this rule” alone. Each unlisted dismissal must share the feature that justifies the default for neglect.
The court's own-motion dismissal for noncompliance shows the test at work. The first sentence of the rule speaks of a defendant's motion,13 so a dismissal the court initiates is not literally one the rule describes. It still satisfies the test. The defendant has prepared to meet the merits, and the plaintiff has wasted that preparation by defying the court, so the policy applies as fully as when the defendant moves. Who asked the court to act changes nothing about what the plaintiff squandered.
Stripped of its categories, the test asks a practical question: had the defendant already been put to the work of meeting the merits, or did a threshold problem stop the case before then? That question matches a broader way of thinking about merits effect, under which a ruling counts as on the merits when a second chance to litigate would defeat the purpose of the ruling.14 A sanction for neglect loses its point if the neglectful plaintiff may file again. A ruling that this court is the wrong place has no purpose that a second suit in the right place defeats.
Baris supplies the other side of the line. The earlier federal dismissal there rested on forum non conveniens and was designated with prejudice, yet the Fifth Circuit applied Costello's principles, considered the basic nature of the doctrine, and refused to treat the dismissal as on the merits as to the entire claim.17 The label did not control. Another court made the same point about a with-prejudice federal dismissal: the label need mean no more than that the plaintiff cannot refile in that federal district, and the claim-preclusion effect elsewhere is “not determined solely by how the federal court dismissal is styled.”18 The result follows from the test's own question. The plaintiffs in Baris abandoned no hearing, and a defendant who wins a dismissal of that kind has shown only that the case belongs in another forum, so the neglect policy is not equally applicable. A student who sorts an unlisted dismissal by its label overlooks that the label did not decide Baris.
Failure to State a Claim
A dismissal for failure to state a claim rules that the complaint, taken as true, describes no claim the law recognizes. The second sentence of Rule 41(b) controls its effect, because the dismissal is not one under the rule and appears nowhere among the three exceptions. Unless the order states otherwise, it therefore operates as an adjudication on the merits.20 A silent order dismissing for a pleading defect thus bars a second suit on the same claim. Whether a complaint states a claim is a pleading question; the question here is what the dismissal does to the next suit.
The Illinois Supreme Court describes the same rule in River Park, Inc. v. City of Highland Park. It observed that the same is true under federal law, citing Rule 41(b) and federal decisions holding that a dismissal for failure to state a claim operates as an adjudication on the merits while a dismissal for lack of subject-matter jurisdiction does not.21 The parties did not challenge those principles. They disagreed about the ground of the earlier federal dismissal: the defendant said failure to state a claim, and the plaintiffs said failure to state a claim and lack of subject-matter jurisdiction. The court read the federal opinions and agreed with the defendant.22 The dispute shows where the analysis begins. The ground on which the first court actually dismissed decides the outcome, because the same silent order frees the claim if the ground was jurisdictional and closes it if the ground was a pleading defect.
West Virginia's highest court explained why a pleading dismissal carries merits effect. In Sprouse v. Clay Communication, Inc., it described the majority view and national trend as resting on two policies: protecting defendants from irresponsible forum-shopping by plaintiffs, and giving litigation a definite end, free of the prevailing party's fear that dismissed actions will be brought again.23 The liberal amendment provisions of the Federal Rules, which many states have adopted, support that rationale.24 Those provisions give a plaintiff ample room to repair a defective pleading. A dismissal that did not bind would let the same plaintiff keep filing revised complaints, and the defendant would never learn whether the claim was finished.
Courts following the majority view hold that a prior dismissal under Rule 12(b)(6) is a final judgment unless the court specifically dismisses without prejudice.25 The finality rule applies whether leave to amend was never granted or was granted and not acted upon.26 The Second Circuit's summary in Fyfe v. Pan-Atlantic S.S. Corp. states the position compactly: where amendment was permissible, a plaintiff's failure to amend after dismissal should bar a second suit.27
A minority of jurisdictions, against the national trend, lets the plaintiff try again with a corrected pleading. In Rost v. Kroke, a Minnesota decision the West Virginia court described, the first complaint had alleged in the alternative facts that made a good claim and facts that did not. A demurrer was sustained, and the court held that the dismissal did not bar a later suit in which the pleader cured the defect by stating a good cause of action.28
Sprouse shows how the choice between the views played out. The plaintiff's first action in one county was dismissed, and the plaintiff neither sought leave to amend nor appealed. More than six months later the plaintiff sued again in another county on similar facts, and the defendant moved for summary judgment on the strength of the first dismissal.29 West Virginia law was unclear, so the court weighed both views and adopted the majority view as the better one. It then gave that holding only prospective application, because the confusion in the law had set the parties a needless “game of forfeits,” and it added that the first trial judge clearly meant to dismiss only the complaint, not the whole action.30 A student who stops at the court's adoption of the majority rule will predict the wrong result for this plaintiff, because the court applied the rule only to later cases.
The two views converge on leave to amend. The minority view concedes that when the first court expressly granted leave to amend and the plaintiff specifically refused the privilege, the first action becomes res judicata.31 The majority view reaches the same result in that situation and in the neighboring one where leave was granted and left unused. Leave to amend closes the gap because it answers the minority's objection that the plaintiff never had a chance to cure. A plaintiff who was invited to put a proper claim before the court and declined cannot say the court denied that chance.
The common first reaction is that a pleading dismissal cannot be on the merits because no one weighed any evidence. That is the minority position. The federal default points the other way, so an answer should begin with the rule's text and treat the minority view as a local variation.32 The default also yields to the order itself, so a court that states the dismissal is without prejudice leaves the plaintiff free to replead under either view. How far a federal court's merits label controls preclusion in some other court is a separate question, taken up later under the meaning of on the merits.
Forum Non Conveniens
Under the doctrine of forum non conveniens, a court that has jurisdiction declines to exercise it because another forum suits the case far better. Strictly speaking, that is not a dismissal for “lack of jurisdiction” under Rule 41(b); it is a discretionary refusal to exercise jurisdiction that plainly exists.34 In Baris, the Fifth Circuit nonetheless held that such a dismissal follows “the same rules” as a dismissal for lack of jurisdiction or improper venue, and it refused to treat the dismissal as on the merits as to the entire claim even though the district court had designated it with prejudice.35
The with-prejudice label did not decide the matter. The court declined to give the dismissal preclusive effect “even in light of” that designation, applying Costello and considering the basic nature of the doctrine.36 Labels have limited reach in general. Another court explained that a dismissal with prejudice may mean no more than that the plaintiff cannot refile in that federal district, and that whether the plaintiff is barred elsewhere is a matter of claim-preclusion law “not determined solely by how the federal court dismissal is styled.”37
Timing is the decisive feature. A court generally decides forum non conveniens well before it begins to address the merits of a claim, and the ruling is a deliberate refusal to decide the substantive issues because the court was mistakenly chosen. The defendant has not yet been put to the work of meeting the merits, and “[n]o apparent reason exists to justify forfeiture of the underlying claims upon a mistaken choice of tribunal.”38 The neglect default rests on preparation the plaintiff has wasted, and an early forum ruling leaves no such preparation to protect.
The Supreme Court has called forum non conveniens “nothing more or less than a supervening venue provision.” The Fifth Circuit noted that the remark suggests such a dismissal might fall within Rule 41(b)'s improper-venue exception, although the Supreme Court was not interpreting Rule 41(b).39 Either route leads to the same place. Like a dismissal for lack of jurisdiction or improper venue, a forum non conveniens dismissal “does not establish claim preclusion.”40
The dismissal still carries some preclusive weight, and the court located it precisely. It can work to preclude relitigation only of the forum non conveniens issue in the dismissing court.41 That limit tracks issue-preclusion doctrine, which requires that the issue was actually litigated and necessarily decided in the first action, so that preclusion follows only after a full opportunity to litigate that issue.42 The forum question meets that standard. The merits of the claim, which the court never decided, do not. The district court's own later order reads the same way. It described its earlier judgment as “addressing the forum non conveniens issue,” and the Fifth Circuit concluded that the court never meant “with prejudice” to reach the plaintiffs' claims rather than that issue alone.43 The Fifth Circuit also rejected the argument that the ruling's issue-preclusive and law-of-the-case effects extend to state court.44
The Supreme Court's decision in Exxon Corp. v. Chick Kam Choo illustrates the limit. A federal court had dismissed without prejudice on forum non conveniens grounds, and the plaintiff then tried to sue in state court. The Fifth Circuit upheld an injunction against the state proceeding, and the Supreme Court reversed, observing that whether the state courts were an appropriate forum for the plaintiff's Singapore-law claims “has not yet been litigated.”45 The only issue the federal court had decided was whether the claims should be dismissed under the federal doctrine.46 The Fifth Circuit treated Baris as similar and gave the dismissal no claim-preclusive effect despite the with-prejudice designation.
A with-prejudice label frees the claim here, while silence after a neglect dismissal closes it, because the defendant stood in a different position when the court acted. After a neglect dismissal, the defendant has incurred the inconvenience of preparing to meet the merits, and the policy against making it suffer for the plaintiff's misstep applies.47 After a forum non conveniens dismissal, the ruling came well before any such preparation, and it decided only where the case belongs. A with-prejudice label on a forum non conveniens order therefore forecloses what the order actually decided, the forum question, and goes no further. A student who sees the label and predicts a permanent bar on the claim has moved from the order's words to a consequence the policy behind the default does not support.