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SMITH v. WASHINGTON2/24/2000
rpretations of federal courts regarding dismissals by stipulations in similar cases. Based upon the similarities of our rules with the Federal Rules of Civil Procedure, we consider the interpretation of these rules by federal courts to be of significant precedential value. Bussey v. Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (Ark. App. 1980).
The stipulation of dismissal filed with the federal court on January 3, 1995, read: "Pursuant to Rule 41(a)(1) of Federal Rules of Civil Procedure, the undersigned, being all parties who have appeared in this action, do hereby stipulate to the dismissal without
prejudice of Plaintiff's action against Defendant Dr. Erma S. Washington." The filing is signed by the attorney for the plaintiff and counsel for the defendant.
In Poloron, supra, the Second Circuit Court of Appeals noted that, given the purpose of the two-dismissal rule, to prevent an unreasonable use of the plaintiff's unilateral right to dismiss an action prior to the filing of the defendant's responsive pleading, "the danger of such abuse diminished, however, where the first dismissal is by stipulation. A dismissal by stipulation is not a unilateral act on the part of the plaintiff but rather is a mutual agreement by all the parties. . . The filing of a notice of dismissal preceded by a dismissal by stipulation knowingly consented to by all parties does not activate the two-dismissal bar against bringing an action based on or including the same claim." Id.
Similarly, in Kuhn, supra, the district court held that a stipulation of dismissal did not trigger the two-dismissal rule because the defendant could have declined to enter into the stipulation. Where the defendant has consented to the dismissal of the claim without prejudice, "it is inequitable to interpret the two-dismissal rule in a fashion that now bars their refiling." Id.
Notwithstanding the interpretation given the federal rules by federal courts, appellee urges that Ark.R.Civ.P. 41 does not require the dismissal by the plaintiff to be unilateral. However, we note that our own previous interpretation of Arkansas's Rule 41(a) is consistent with the federal courts' rulings. In Carton v. Missouri Pac. R.R., 295 Ark. 126, 747 S.W.2d 93 (1988), we held that, in order for a second dismissal to work as an adjudication on the merits of a plaintiff's claim, both dismissals must be on the motion of the plaintiff or Rule 41(a) is inapplicable. Notwithstanding appellee's contention that appellant's first dismissal need only be "voluntarily" entered into, and that her counsel's signature on the stipulation of dismissal filed in the federal court action "was a matter of form and served in no way to make the appellant's dismissal of the federal action anything other than `voluntary,'" we note that the Fed.R.Civ.P. 41(a)(1)(ii) explicitly requires the signature of all parties who have appeared in the action in order to effect a dismissal by stipulation. See also Camacho v. Mancuso, 53 F.3d 48 (4th Cir. 1995) (court declined to accept a written stipulation of dismissal because it was not signed by both parties, because a stipulation is
only valid if both parties sign a document or appear before the court to make an oral stipulation official).
In the circumstances before us, we note that appellant could not unilaterally effect a dismissal by stipulation under federal court procedural rules. Because appellee must have agreed to participate in the dismissal in order to achieve it, the dismissal by stipulation was not a dismissal taken only by appellant and thus does not trigger the consequences of the two-dismissal rule. Appellee was not required to enter into the stipulation, and she received a
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