Reich v. Lundberg ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 95-10504
(Summary Calendar)
_________________________
ROBERT B. REICH, Secretary of the
United States Department of Labor,
Plaintiff,
and
PENSION BENEFIT GUARANTEE CORPORATION,
Plaintiff-Counter Defendant-
Appellee,
VERSUS
THOMAS D. LUNDBERG,
Defendant,
and
SAMUEL LONGO; JOE F. WALL;
JOHN SANDERS; 127 INC;
CAPITAL GENERAL CORPORATION
Defendants,
and
DAVID J. BOATRIGHT
Defendant-Counter Claimant-
Appellant.
Appeals from United States District Court
for the Northern District of Texas
(3:88CV02470 and 3:88CV02471)
March 15, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
*Pursuant to Local Rule 47.5, the court has det ermined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
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David J. Boatright appeals the district court’s granting of Pension Benefit Guarantee
Corporation’s (PBGC’s) motion for voluntary dismissal of the suit against him, contending that the
dismissal should have been granted with prejudice, instead of without prejudice. Finding that the
district court did not abuse its discretion in granting the voluntary dismissal without prejudice, that
dismissal is AFFIRMED, and Boatright’s requests for relief are DENIED.
BACKGROUND
Boatright was an actuarial consultant hired by Lundberg in 1986 to report on the assets of a
new pension plan that Lundberg was purchasing for his company. As a consequence of his actions
on that consulting job, Boatright was added as defendant to PBGC’s embezzlement suit against
Lundberg in 1991. This court in part affirmed the grant of summary judgment against Boatright, and
the dismissal of his counterclaims for slander and defamation, but remanded for a determination of
the damage award against Boatright.
Following remand from this court, PBGC filed a motion for voluntary dismissal of the
action, pursuant to Fed. R. Civ. P. 41(a)(2), stating, inter alia, that the intervening case law could
conflict with the damage award against Boatright and that, in any event, Boatright had represented
that he had virtually no assets. Boatright did not oppose the motion for voluntary dismissal, but
requested that the court dismiss the case “with extreme prejudice of a vexatious, malicious, and
vindictive nature.” He also stated that the lawsuit violated a “written proffer agreement” with the
United States Attorney that no information proffered in the criminal action against Boatright would
be used against him in any matter.
The district court granted PBGC’s motion for voluntary dismissal, but did not state whether
the dismissal was with, or without, prejudice. Boatright filed a motion to amend the order to reflect
a dismissal with prejudice. The district court denied the motion, finding no compelling reason for the
requested amendment and stating that PBGC’s motion for dismissal clearly demonstrated that PBGC
had no further desire to prosecute the case. Boatright filed a timely notice of appeal.
DISCUSSION
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Boatright contends that the district court erred in denying his motion to change the order of
dismissal to reflect a dismissal with prejudice, assert ing that the lawsuit against him was highly
prejudicial and damaging and was based on information protected by an agreement between him and
the United States Attorney.
Boatright apparently views a dismissal with prejudice as akin to a sanction for bringing a
frivolous claim, or for bringing a claim meant primarily to harass. See Fed. R. Civ. P. 11. It is not.
A dismissal with prejudice merely means that the lawsuit is ended. Schwarz v. Follodor, 767 F.2d
125, 129 (5th Cir., 1985). As such it has the effect of a final adjudication on the merits, and further
pursuit of the action is barred. See id.In the case sub judice, the district court granted the plaintiff’s motion for voluntary dismissal.
A plaintiff may move the district court to dismiss his civil action voluntarily, and unless otherwise
specified in the order, a voluntary dismissal is without prejudice. Fed. R. Civ. P. 41 (a)(2). A
voluntary dismissal will be granted unless the defendant would suffer legal prejudice other than the
prospect of a second lawsuit; thus, potentially, a plaintiff who has voluntarily dismissed his cause of
action may be able to reassert it. Manshack v. Southwestern Elec. Power Co., 915 F.2d 172, 174 (5th
Cir. 1990). Thus, the only difference between a dismissal with prejudice and one without, is that in
a dismissal without prejudice, the plaintiff may be able to bring the suit again at a later date,
depending upon the circumstances of the case.
In this instance, however, even were PBGC to reassert its action against Boatright, the suit
would be barred by the applicable ERISA statute of limitations. See Maher v. Strachan Shipping
Co., 68 F.3d 95, 954 (5th Cir. 1995). Because no difference exists between a dismissal without
prejudice and one with prejudice with regard to Boatright, the issue is moot.
To the extent that Boatright attempts again to argue the merits of his counterclaim against
PBGC, that issue has been decided and reconsideration of it is barred by the principles of res judicata.
See Travelers Ins. Co. v. St Jude Hosp. of Kenner, La., Inc., 37 F.3d 193, 195 (5th Cir. 1994), cert.
denied, 115 S. Ct. 1696 (1995). Additionally, Boatright asks, for the first time on appeal, that the
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court void his actuary termination by the Joint Board for the Enrollment of Actuaries and open a
counterclaim against Jeffrey Cohen. Because Boatright raises these claims for the first time on
appeal, they are not reviewable by this court. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991). Accordingly, the district court’s dismissal without prejudice is AFFIRMED, and Boatright’s
requests for relief are DENIED.
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