Cox v. PNC Bank, National Association

Filing 24

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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMES COX,

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Plaintiff(s),

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Case No. 2:15-CV-2294 JCM (GWF)
ORDER

v.
PNC BANK NATIONAL ASSOCIATION,
et al.,

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Defendant(s).

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Presently before the court is defendant PNC Bank, National Association’s (“PNC”)

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September 21, 2016, motion to dismiss plaintiff James Cox’s claims against it with prejudice.

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(ECF No. 18). Plaintiff has filed a response (ECF No. 21), and PNC has filed a reply (ECF No.

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22).

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Notably, this case is closed; the court has already dismissed the complaint, without

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prejudice, as to both PNC and its co-defendant. (ECF Nos. 14, 16). Specifically, PNC was

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dismissed from this action on July 1, 2016. See (ECF No. 14).

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Federal Rule of Civil Procedure 41(b) states as follows:

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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.

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Plaintiff responds that the court ordered no specific timeframe for amending the complaint;

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there is no prejudice for allowing the present dismissal to stand; plaintiff was originally a pro se

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litigant; and he has filed a new lawsuit in Nevada state court on September 15, 2016, after retaining

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counsel. (ECF No. 21).

James C. Mahan
U.S. District Judge

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PNC replies that its July 25, 2016, proposed order for its previous motion to dismiss put

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plaintiff on notice that he had 21 days to amend his complaint, pursuant to Federal Rule of Civil

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Procedure 15. (ECF No. 22). However, PNC’s reply offers an inaccurate statement of law. See

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Fed. R. Civ. P. 15; see also (ECF No. 16 at 1 n.1). In fact, the court chose to develop its own order

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regarding the dismissal of plaintiff’s complaint because it explicitly rejected this exact argument

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when reviewing PNC’s July 25, 2016, proposed order dismissing it from the case. (ECF No. 16

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at 1 n.1).

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More concerning to this court is PNC’s submission of this motion soon after a new

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complaint has purportedly been filed in state court. See (ECF No. 18) (lacking any mention of a

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new filing); see also (ECF No. 21).

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It is generally for the later-involved court to decide whether an earlier judgment has a

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preclusive effect in subsequent litigation. See Robi v. Five Platters, Inc., 838 F.2d 318, 327 (9th

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Cir. 1988) (discussing the “last in time” rule). Yet, as PNC explicitly noted in its motion and reply,

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“[d]ismissal under Rule 41(b) normally operates as an adjudication on the merits.” Hulbert v.

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Herring, 972 F.2d 1339 (9th Cir. 1992); see also (ECF Nos. 18, 22).

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This court will not endorse a strategic effort to seize the preclusion question from the state

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court. Plaintiff had a choice in this case: whether to submit an amended complaint to this court so

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that he could advance the present litigation. Instead, he elected to retain counsel and initiate a new

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suit in state court, leaving the instant case closed. See (ECF No. 21). The court finds that it is

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inappropriate to rule in PNC’s favor on this motion and warns against any interpretation of this

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order as determining the preclusive effect of the instant litigation.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that PNC’s motion to

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dismiss with prejudice (ECF No. 18) be, and the same hereby is, DENIED.
DATED April 24, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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