United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD UNITED STATES DISTRICT JUDGE.
matter is before the Court on the defendant's motion to
dismiss (filing 28). For the reasons discussed
below, the Court will grant the motion.
plaintiff has been before this Court before on the same
claims for relief. The plaintiff filed the first action
against this defendant in state court, and after he filed his
Second Amended Complaint, the defendant removed the case to
this Court on October 30, 2014. Powell v. Blue Cross Blue
Shield of Neb. (Powell I), case no.
8:14-cv-337, filing 1. The plaintiff had two
lawyers. The first moved to withdraw on March 3, 2015, citing
a breakdown in the attorney-client relationship. Powell
I, filing 13. The Court granted that request.
Powell I, filing 14. A few days later, the
second lawyer also moved to withdraw because she had switched
firms, and she explained that she had both written to the
plaintiff and spoken on the telephone with him about her need
to withdraw. Powell I, filing 15. The Court
granted her request as well. Powell I, filing
March 13, 2015, after granting the second motion to withdraw,
the Court ordered the plaintiff to either obtain new counsel
or notify the court of his intent to proceed without counsel,
on or before April 3. Powell I, filing 16.
The plaintiff did not respond in any way to the order. On
April 24, the defendant filed a motion to dismiss. Powell
I, filing 17. The plaintiff did not respond in
any way to the motion to dismiss. On May 20, the Court
granted the motion to dismiss pursuant to Fed. R. Civ. P.
41(b), based on the plaintiff's failure to comply
with the Court's March 13 order, failure to comply with
the case progression requirements of Fed. R. Civ. P.
26(f), and general failure to prosecute the case.
Powell I, filing 18 at 1.
October 22, 2015, the plaintiff filed the present action in
this Court. Filing 1. The new complaint is
materially identical to the operative complaint that was
dismissed in Powell I. Compare filing 1
with Powell I, filing 1-1 at 1-7. The defendant
has moved to dismiss this action on the grounds that the
plaintiff is barred from refiling the same claims that were
dismissed in Powell I. Filing 28.
survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6), a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id. While the Court must
accept as true all facts pleaded by the non-moving party and
grant all reasonable inferences from the pleadings in favor
of the non-moving party, Gallagher v. City of
Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012), a pleading
that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do.
Iqbal, 556 U.S. at 678. Determining whether a
complaint states a plausible claim for relief will require
the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
relevant, Rule 41(b) explains that
[i]f 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 . . . operates as an
adjudication on the merits.
district court may dismiss a cause of action with prejudice
for failing to prosecute or to comply with the federal rules
or any court order. Bergstrom v. Frascone, 744 F.3d
571, 574 (8th Cir. 2014). "An involuntary dismissal
under Rule 41(b) is with prejudice unless stated otherwise by
the district court." Luney v. SGS Auto Servs.,
432 F.3d 866, 867 (8th Cir. 2005); cf. Boyle v. Am. Auto
Serv., 571 F.3d 734, 743 (8th Cir. 2009). The primary
meaning of dismissal with prejudice in Rule 41(b) is barring
the defendant from returning later, to the same court, with
the same underlying claim. Semtek Int'l v. Lockheed
Martin Corp., 531 U.S. 497, 505 (2001).
Court dismissed Powell I under Rule 41(b) for
failure to comply with court orders and rules, and failure to
prosecute. Powell I, filing 18 at 1. The
Court did not state that the dismissal was without prejudice.
See Powell I, filings 18 and 19.
Therefore, Powell I was dismissed with prejudice.
See Boyle, 471 F.3d at 743; Luney, 432 F.3d at 867.
claims in the present action are identical to the claims in
Powell I. Since this Court's dismissal of
Powell I was an adjudication on the merits pursuant
to Rule 41(b), the plaintiff is barred from bringing the same
claims again in this Court. See Luney, 432 F.3d at
867; see also Semtek ...