Opinion · Court of Appeals for the Fifth Circuit

Jose C. Alvarado v. Maritime Overseas Corporation

Jose C. Alvarado v. Mar. Overseas Corp., 528 F.2d 605 (5th Cir. 1976)

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1976-03-15
Topic
general

RONEY, Circuit Judge: This case involved the identical issues presented in LeCompte v. Mr. Chip, Inc., 528 F.2d 601 (5th Cir. 1976), also decided this day. LeCompte controls the dis *606 position of this case. Accordingly, we vacate and remand.

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Cited by
6 opinions
ALVARADO v. MARITIME OVERSEAS CORP.,528 F.2d 605(5th Cir. 1976)
JOSE C. ALVARADO, PLAINTIFF-APPELLANT, v. MARITIME OVERSEAS CORPORATION,
DEFENDANT-APPELLEE.
No. 75-2776.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
March 15, 1976.
R. M. Sharpe, Jr., Bill Sanders, Beaumont, Tex., for plaintiff-appellant.

Frank E. Caton, Houston, Tex., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before THORNBERRY, MORGAN and RONEY, Circuit Judges.
RONEY, Circuit Judge:
[1] This case involved the identical issues presented inLeComptev. Mr. Chip, Inc.,528 F.2d 601(5th Cir. 1976), also decided this day.LeComptecontrols the dispositionPage 606of this case. Accordingly, we vacate and remand.

[2] Arising in the same court asLeCompte,this case involved the identical conditions affixed to a 41(a)(2) order of dismissal "without prejudice." The conditions were: (1) any subsequent suit must be filed in the present court; (2) plaintiff must show a need of extraordinary circumstances before reopening the case; and (3) an affirmative demonstration to the court's satisfaction that a valid cause of action can be maintained against defendant.

[3] What makes the instant case even stronger thanLeComptefor reconsideration by the district court is the fact that defendant herein never objected to plaintiff's motion for dismissal without prejudice. Although some type of curative conditions can be imposed to protect the defendant's interests, there is no unshakable mandate that conditions be imposed in all cases. This is particularly true where defendant has not objected to the dismissal for this itself evidences a lack of any prejudice upon defendant.See9 Wright Miller,Federal PracticeProcedure§ 2366, at 177 (1971). Moreover, defendant must not have believed the conditions were necessary to protect his interests for he failed to file a brief in this Court to oppose the contentions asserted by plaintiff.

[4] We vacate the district court's order and remand for a redetermination in light ofLeCompte v. Mr. Chip, Inc., supra.

[5] Vacate and remand.
  1. Rule 18, 5 Cir.; seeIsbell Enterprises, Inc. v. CitizensCasualty Co. of New York et al.,5 Cir., 1970,431 F.2d 409, Part I. ↩