Ambiguous Dismissal Order Bars Claim Preclusion

• Author: Andrew K. Robertson
• Pages: 26-26

Published in Litigation News Volume 47, Number 1, Fall 2021. © 2021 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any f orm or

by any means or stored in an el ectronic database or r etrieval system w ithout the expre ss written cons ent of the American Bar A ssociation.

appear to be saying , ‘Look, medical

marijuana ha s been proven to help

patients, so em ployers need to recog-

nize this and, consi stent with the needs

of the workplace, accommoda te its

use,’” observes Kieve.

Ambiguous

Dismissal Order

Bars Claim

Preclusion

By Andrew K. Rob ertson, Litigation

News Contributing Editor

Ambiguities in d ismissal orders will be

construed against claim preclusion.

In Papera v. Pennsylvania Quarried

Bluestone Co., the parties move d to

dismiss their su it after agreeing to a

settlement, and the court entered a

dismissal order. When the settlement

failed to consum mate, the plaintis

ref‌iled their prev iously dismissed

claim. The dis trict court dismissed the

case on the groun ds that the plaintis

were barred from re litigating their

previous claims . The U.S. Court of

Appeals for the T hird Circuit reversed

the district cou rt’s ruling and adopted

two new rules when c onstruing

ambiguous dismissal orders.

The Paperas own ed a quarry

and agreed to let th e Pennsylvania

Quarried Bl uestone Company mine the

property. The Paperas made repeated

requests to Pen nsylvania Quarried to

remove abandoned property and pay

for the mined ston e. These requests

went unfulf‌ille d, and the Paperas

brought suit in fed eral court.

After mediatio n, the parties

advised the cour t that they had

reached a settlement. The court

entered a two-sentence order stating

the case was dismi ssed and the par-

ties had 60 days to f‌inal ize their set-

tlement. However, the parties never

reached a f‌inal settlement, and after

the expiration of 60 days , the district

court admin istratively closed the suit.

When the Paperas ref‌iled their

complaint, the d istrict court granted

summary jud gment in favor of

Pennsylvania Quarried, holding that

the Paperas were b arred from ref‌iling

their suit due to clai m preclusion.

On appeal, th e Third Circuit

addressed whether the district

court’s initia l dismissal order was with

or without prejud ice. Under Federal

Rule of Civil Proced ure 41(a), invol-

untary dismi ssals are with prejudice

and operate as an a djudication on

the merits. B ecause of the dispositive

nature of involuntar y dismissals, the

court found th em to be disfavored

and appropria te only in “limited cir-

cumstances.” A plainti’s f‌irst volun-

tary dismiss al, by contrast, is without

prejudice and , thus, void of any

“claim-precl usive eect.” The court

also observed that claim preclusion

traditionally re quires a judgment on

the merits.

The Third Circuit adopted two

rules for construing ambiguities in

dismissal orders. First, unclear dis-

missal order s will be construed as

voluntary. Secon d, the f‌irst unclear

voluntary dismissal will be construed

as being without p rejudice. The

court reason ed that “only a clear and

explicit statemen t will suce to make

a dismissal involuntary, or voluntary

with prejudice.”

Here, the cour t found nothing in

the record that spe cif‌ied whether the

district cour t’s dismissal was with or

without prejudi ce. It found that the

dismissal ord er was the Paperas’s

f‌irst dismiss al and, therefore, with-

out prejudice. T he court further con-

cluded that amb iguities in dismissal

orders will be con strued “against

claim preclusion.”

The appellate co urt’s holding

highlights the “parties’ responsi-

bilities to ensure the c ase has been

properly dismi ssed—with or without

prejudice indications,” notes Angela

Foster, North Brun swick, NJ, cochair

of the ABA Litigation S ection’s Trial

Evidence Commit tee. “Usually, after

an amicable se ttlement, the parties

will f‌ile a jointly sign ed stipulation to

dismiss the cas e with prejudice with

the court,” obs erves Foster. Such

“dismissal orde rs should be drafted

carefully to explic itly state the spe-

cif‌ic conditions o f any dismissal,” rec-

ommends Kenneth N. Klemm, New

Orleans, L A, cochair of the Litigation

Section’s Trial Evidence Co mmittee.

Because of the d ispositive nature

of dismissal ord ers, “these orders

require litigators to b e cognizant of

such deadlin es and, if a settlement

cannot be cons ummated, move for

relief to protect the in terest of their

clients,” sug gests Klemm, “and coun-

sel should be ca reful to heed both

the local rule s and settlement orders

issued by the cour t to avoid having

claims preclud ed when the parties fail

to consummate a settl ement.” Plaintis

especially should “have language in

the settlement agreement stating that

in the event the defend ant does not

completely comply with the settlement

agreement in it s entirety, the plain-

ti reserves the ri ght to relitigate the

case,” counsels Foster.

Court Holds

“Revenge

Porn” Statute Is

Constitutional

By Peter Murphy, Litigation N ews

Contributing Editor

Responding to a ris e in “revenge porn,”

Illinois enacted a statute criminaliz-

ing the nonconsensual dissemination

of private sexual imag es. In People

v. Austin, the Illinois Supreme Co urt

upheld the stat ute against a First

Amendment challenge, f‌inding that it

survived under intermediate scrutiny

and was not uncon stitutionally vague

or overbroad. ABA Litigation Section

leaders que stion the level of scrutiny

applied by the cour t and suggest that

additional guidance is required from

the U.S. Su preme Court.

A woman shared an iCloud account

with her f‌iancé an d could see her

f‌iancé’s text messa ges. She saw mes-

sages betwee n her f‌iancé and the

neighbor with wh om he was having

an aair, including nude photographs

of the neighbor. Afte r calling o their

engagement, the f‌iancé told friends

and family it was because the woman

was crazy. In respons e, the woman dis-

tributed a letter set ting forth her ver-

sion of events and cop ies of the text

messages and nude photographs. The

woman was then cha rged under the

state’s “revenge porn” statute.

The Illinois le gislature had adopted

a statute prohibitin g the intentional

disseminatio n of sexual images under

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