U.S. Court of Appeals for the Sixth Circuit, 1959

Paul Bartsch v. Chamberlin Company of America, Inc.

U.S. Court of Appeals for the Sixth Circuit · Decided April 11, 1959 · Maris, Miller, Mathes

266 F.2d 357; 1959 U.S. App. LEXIS 4074 (Federal Reporter, Second Series)

Counsel

Robert F. Belovich and Belovich & Berdis, Parma, Ohio, for appellant., Charles D. Johnson, of Baker, Hostetler & Patterson, Cleveland, Ohio, Armstrong, Helm, Marshall & Schumann, Detroit, Mich., for appellee.

Cases that cite this one

16 later published cases cite this decision.

Rampy v. ICI Acrylics, Inc. (Tenn. Ct. App. 1994)
Michael Earl Dyer v. Intera Corporation Intera Company, Ltd. And Tennessee Venture, Inc. (6th Cir. 1989)
Allan v. Sheesley (S.D. 1989)
Annapolis Urban Renewal Authority v. Interlink, Inc. (Md. Ct. Spec. App. 1979)
Eugene A. CEMER, Plaintiff-Appellant, v. MARATHON OIL COMPANY, Defendant-Appellee (6th Cir. 1978)
Gissen v. Tackman (District Court, D. New Jersey 1975)
Ouida J. Weissinger A/K/A Ouida Boyd and Mrs. George Boyd v. United States (5th Cir. 1968)
General Motors LLC v. FCA US LLC (District Court, E.D. Michigan 2020)
ABB Paint Finishing, Inc. v. National Union Fire Insurance (Mich. Ct. App. 1997)
Browning Debenture Holders' Committee v. DASA Corp. (District Court, S.D. New York 1978)
Fed. Sec. L. Rep. P 96,044 Sandra Lee Simmons Shaw v. Merritt-Chapman & Scott Corp. (6th Cir. 1977)
Gainey v. Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees (District Court, E.D. Pennsylvania 1967)
Begin v. Bernard (Me. 1964)
Rambur v. Diehl Lumber Company (Mont. 1964)
Costas Purcell v. Superior Court of Puerto Rico (Supreme Court of Puerto Rico 1963)
Costas Purcell v. Tribunal Superior de Puerto Rico (Supreme Court of Puerto Rico 1963)

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.

Appellant filed an action in the District Court against the appellee for breach of contract. Appellee moved to dismiss the action for the reason that the complaint’failed to state a claim upon which relief could be granted. By order of July 3, 1957, the District Judge granted appellee’s. motion and. ordered “that'the complaint herein is hereby dismissed at plaintiff’s costs.” No appeal was taken.

On September 30, 1957, appellant filed the present action m- zhe District Court against the appellee upon the same alleged cause of action. Appellee filed a motion for summary judgment in which it referred to the order of July 3, 1957, in the first case and stated that it constituted a complete bar against the prosecution by the appellant of this action. The District Judge ruled “Motion granted, pursuant to Rule 41(b).”, and an order was entered dismissing the action at appellant’s costs. This appeal followed.

Since the order of dismissal in the first case was not by reason of lack of jurisdiction or improper venue and did not specify that it was not upon the merits, under Rule 41(b), Rules of Civil Procedure, 28 U.S.C.A. it operated as an adjudication upon the merits. Van Brode Milling Co. v. Kellogg Co., D.C. Del., 113 F.Supp. 845, 847; Bartfield v. Parkhurst, D.C.Puerto Rico, 117 F.Supp. 82, 83. Appellant did not request leave to amend or that the order of dismissal provide that it was without prejudice. The District Judge correctly ruled that it operated as a bar to the present action. American National Bank & Trust Co. v. United States, 79 U.S.App.D.C. 62, 142 F.2d 571.

The judgment is affirmed.

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