Cox v. PNC Bank, National Association
ORDER Denying PCN's 18 Motion to Dismiss with prejudice. Signed by Judge James C. Mahan on 4/24/2017. (Copies have been distributed pursuant to the NEF - SLD)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 2:15-CV-2294 JCM (GWF)
PNC BANK NATIONAL ASSOCIATION,
Presently before the court is defendant PNC Bank, National Association’s (“PNC”)
September 21, 2016, motion to dismiss plaintiff James Cox’s claims against it with prejudice.
(ECF No. 18). Plaintiff has filed a response (ECF No. 21), and PNC has filed a reply (ECF No.
Notably, this case is closed; the court has already dismissed the complaint, without
prejudice, as to both PNC and its co-defendant. (ECF Nos. 14, 16). Specifically, PNC was
dismissed from this action on July 1, 2016. See (ECF No. 14).
Federal Rule of Civil Procedure 41(b) states as follows:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule—except one for lack of jurisdiction, improper venue,
or failure to join a party under Rule 19—operates as an adjudication on the merits.
Plaintiff responds that the court ordered no specific timeframe for amending the complaint;
there is no prejudice for allowing the present dismissal to stand; plaintiff was originally a pro se
litigant; and he has filed a new lawsuit in Nevada state court on September 15, 2016, after retaining
counsel. (ECF No. 21).
James C. Mahan
U.S. District Judge
PNC replies that its July 25, 2016, proposed order for its previous motion to dismiss put
plaintiff on notice that he had 21 days to amend his complaint, pursuant to Federal Rule of Civil
Procedure 15. (ECF No. 22). However, PNC’s reply offers an inaccurate statement of law. See
Fed. R. Civ. P. 15; see also (ECF No. 16 at 1 n.1). In fact, the court chose to develop its own order
regarding the dismissal of plaintiff’s complaint because it explicitly rejected this exact argument
when reviewing PNC’s July 25, 2016, proposed order dismissing it from the case. (ECF No. 16
at 1 n.1).
More concerning to this court is PNC’s submission of this motion soon after a new
complaint has purportedly been filed in state court. See (ECF No. 18) (lacking any mention of a
new filing); see also (ECF No. 21).
It is generally for the later-involved court to decide whether an earlier judgment has a
preclusive effect in subsequent litigation. See Robi v. Five Platters, Inc., 838 F.2d 318, 327 (9th
Cir. 1988) (discussing the “last in time” rule). Yet, as PNC explicitly noted in its motion and reply,
“[d]ismissal under Rule 41(b) normally operates as an adjudication on the merits.” Hulbert v.
Herring, 972 F.2d 1339 (9th Cir. 1992); see also (ECF Nos. 18, 22).
This court will not endorse a strategic effort to seize the preclusion question from the state
court. Plaintiff had a choice in this case: whether to submit an amended complaint to this court so
that he could advance the present litigation. Instead, he elected to retain counsel and initiate a new
suit in state court, leaving the instant case closed. See (ECF No. 21). The court finds that it is
inappropriate to rule in PNC’s favor on this motion and warns against any interpretation of this
order as determining the preclusive effect of the instant litigation.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that PNC’s motion to
dismiss with prejudice (ECF No. 18) be, and the same hereby is, DENIED.
DATED April 24, 2017.
UNITED STATES DISTRICT JUDGE
James C. Mahan
U.S. District Judge
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