U.S. Court of Appeals for the Tenth Circuit, 1958

Donald O. Shaffer v. James Evans

U.S. Court of Appeals for the Tenth Circuit · Decided December 29, 1958 · Lewis, Murrah, Per Curiam, Phillips

263 F.2d 134; 2 Fed. R. Serv. 2d 678; 1958 U.S. App. LEXIS 6111 (Federal Reporter, Second Series)

Counsel

Clinton R. Barry, Fort Smith, Ark., on brief for appellant., Jack M. Thomas, Tulsa, Okl. (Truman B. Rucker, B. W. Tabor and Joseph A. Sharp, Tulsa, Okl., were with him on the brief), for appellee.

Cases that cite this one

16 later published cases cite this decision.

Robert H. Gravatt v. Columbia University (2d Cir. 1988)
Shepherd v. Delta Medical Center (Miss. 1987)
Holbrook v. Andersen Corp. (District Court, D. Maine 1990)
Helmer g. Brandano (9th Cir. 1989)
Chorn v. United States (Court of Claims 1984)
Petritz v. Albertsons, Inc. (Mont. 1980)
Spencer v. Moore Business Forms, Inc. (United States District Court for the Northern District of Georgia 1980)
Murray First Thrift & Loan Co. v. Benson (Utah 1977)
S. Victor Paturzo v. Home Life Insurance Company, a Body Corporate (4th Cir. 1974)
United States v. Wyoming National Bank Of Casper (10th Cir. 1974)
United States v. Wyoming National Bank (10th Cir. 1974)
Standard Industries, Inc. v. Mobil Oil Corporation (10th Cir. 1973)
Standard Industries, Inc. v. Mobil Oil Corp. (10th Cir. 1973)
Dobson v. Crews (Fla. Dist. Ct. App. 1964)
Willard Dairy Corporation v. National Dairy Products Corporation and Sealtest, Inc. (6th Cir. 1962)
Alamance Industries, Inc. v. Filene's (1st Cir. 1961)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PER CURIAM.

The plaintiff appeals from an order of the trial court dismissing his suit with prejudice when he declined to proceed further upon the court's denying his motion to dismiss the action without prejudice after the defendant had filed an answer. The sole contention on appeal is that the court erred in denying the motion to dismiss the suit without prejudice.

In the interest of protecting the rights of all the parties and accomplishing expeditious disposition of litigation, a motion by the plaintiff to dismiss after service of the defendant’s answer or motion for summary judgment is addressed to the sound judicial discretion of the court. Rule 41(a) (2) F.R.Civ.P. Butler v. Denton, 10 Cir., 150 F.2d 687; Grivas v. Parmelee Transp. Co., 7 Cir., 207 F.2d 334; Larsen v. Switzer, 8 Cir., 183 F.2d 850; Federal Savings & Loan Ins. Corp. v. Reeves, 8 Cir., 148 F.2d 731.

This action had been pending for some six months at the time of the hearing on the plaintiff’s motion to dismiss. Depositions had been taken, the defendant had made arrangements for medical testimony, and a pre-trial conference had been held. The case had not been set down for trial, but apparently was ready for trial at the next jury term. Requiring the plaintiff to proceed under those circumstances in the court in which he had filed his action could hardly be termed arbitrary. Certainly, no reason prejudicial to his substantive rights was suggested for dismissal, and the trial court did not abuse its discretion in denying the motion.

The judgment is affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.