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Alvarado v. Maritime Overseas Corp.

United States Court of Appeals, Fifth Circuit
Mar 15, 1976
528 F.2d 605 (5th Cir. 1976)

Summary

holding that where a defendant does not object to the plaintiff's motion to dismiss without prejudice, it is dismissed by agreement

Summary of this case from Gonzalez v. Aztex Advantage

Opinion

No. 75-2776. Summary Calendar.

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

March 15, 1976.

R. M. Sharpe, Jr., Bill Sanders, Beaumont, Tex., for plaintiff-appellant.

Frank E. Caton, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before THORNBERRY, MORGAN and RONEY, Circuit Judges.



This case involved the identical issues presented in LeCompte v. Mr. Chip, Inc., 528 F.2d 601 (5th Cir. 1976), also decided this day. LeCompte controls the disposition of this case. Accordingly, we vacate and remand.

Arising in the same court as LeCompte, this case involved the identical conditions affixed to a 41(a)(2) order of dismissal "without prejudice." The conditions were: (1) any subsequent suit must be filed in the present court; (2) plaintiff must show a need of extraordinary circumstances before reopening the case; and (3) an affirmative demonstration to the court's satisfaction that a valid cause of action can be maintained against defendant.

What makes the instant case even stronger than LeCompte for reconsideration by the district court is the fact that defendant herein never objected to plaintiff's motion for dismissal without prejudice. Although some type of curative conditions can be imposed to protect the defendant's interests, there is no unshakable mandate that conditions be imposed in all cases. This is particularly true where defendant has not objected to the dismissal for this itself evidences a lack of any prejudice upon defendant. See 9 Wright Miller, Federal Practice Procedure § 2366, at 177 (1971). Moreover, defendant must not have believed the conditions were necessary to protect his interests for he failed to file a brief in this Court to oppose the contentions asserted by plaintiff.

We vacate the district court's order and remand for a redetermination in light of LeCompte v. Mr. Chip, Inc., supra.

Vacate and remand.


Summaries of

Alvarado v. Maritime Overseas Corp.

United States Court of Appeals, Fifth Circuit
Mar 15, 1976
528 F.2d 605 (5th Cir. 1976)

holding that where a defendant does not object to the plaintiff's motion to dismiss without prejudice, it is dismissed by agreement

Summary of this case from Gonzalez v. Aztex Advantage

stating that curative conditions need not be imposed where "defendant has not objected to the dismissal for this itself evidences a lack of any prejudice upon defendant"

Summary of this case from Johnson v. Whittington
Case details for

Alvarado v. Maritime Overseas Corp.

Case Details

Full title:JOSE C. ALVARADO, PLAINTIFF-APPELLANT, v. MARITIME OVERSEAS CORPORATION…

Court:United States Court of Appeals, Fifth Circuit

Date published: Mar 15, 1976

Citations

528 F.2d 605 (5th Cir. 1976)

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