Ark. SC reinstates man's complaint against Union Pacific

Jessica M. Karmasek Apr. 9, 2012, 1:45pm


LITTLE ROCK, Ark. (Legal Newsline) - The Arkansas Supreme Court last month reversed a lower court's dismissal of a man's complaint against Union Pacific Railroad Company for work-related injuries.

The Jefferson County Circuit Court had granted Union Pacific's motion to dismiss Donnell Richard's complaint with prejudice based on Arkansas Rule of Civil Procedure 41.

In his appeal to the state's high court, Richard contends that the circuit court erred in its interpretation and application of Rule 41.

In March 2008, Richard filed a complaint in federal district court in Harris County, Texas, against Union Pacific under the Federal Employers' Liability Act.

In his complaint, he alleged that during the course and scope of his employment, he suffered physical injuries due to Union Pacific's negligence.

In October 2009, he then filed a notice of nonsuit without prejudice in the federal district court. The court granted his motion.

In March 2010, he refiled his cause of action against the railroad company in Arkansas, in Jefferson Circuit Court.

In July 2010, Union Pacific answered and affirmatively pled, among other things, that Richard's complaint should be dismissed for insufficiency of service of process and insufficiency of process.

The railroad company subsequently moved to dismiss Richard's complaint, alleging that his summons was defective because it stated that Union Pacific, a foreign corporation, had 60 days to answer the complaint instead of the 30 days required by law.

The company also asserted in its motion that it was entitled to a dismissal with prejudice under Arkansas Rule of Civil Procedure 41(b) in light of Richard's prior voluntary dismissal of his suit in Texas.

In response, Richard filed an affidavit by his counsel, as well as Union Pacific's counsel, stating that the Texas complaint was dismissed because Richard filed a nonsuit at Union Pacific's request and with its agreement.

In March 2011, the Jefferson Circuit Court concluded that Richard's summons was defective and that his complaint should be dismissed because service of the summons had not been completed on Union Pacific within 120 days after the filing of the complaint.

The court eventually entered another order granting Union Pacific's motion to dismiss and dismissed Richard's complaint with prejudice.

The state's high court, in its March 29 opinion, reversed the lower court's dismissal with prejudice and remanded the case.

The "sole question" on appeal, the Court explained, is whether the first dismissal in Texas triggers the two dismissal rule under either Rule 41(a) or (b) and, thus, whether the circuit court erred in dismissing the suit with prejudice.

"As noted above, neither Rule 41(a) nor 41(b), unlike Federal Rule of Civil Procedure 41(a), contains any reference to a joint agreement to dismiss. Rule 41(a)(2) merely states that a voluntary dismissal 'operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States,'" Justice Robert L. Brown wrote for the Court.

"Rule 41(b) provides that a dismissal where there has been a failure of the plaintiff to comply with the rules is without prejudice 'unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.' As evidenced by the record, the motion to dismiss in Texas was filed by Richard alone."

The Court pointed out that there is no dispute that the Texas dismissal in federal court was requested by Richard at the urging of Union Pacific and, more notably, with its agreement.

"(Gordon) Holloway, Texas counsel for Union Pacific, averred in his affidavit that he contacted Richard's Texas counsel, (Todd) Elias, to determine if Elias would agree to dismiss the case in Texas and refile the case in Arkansas so that Union Pacific might be able to bring a third-party claim against an Arkansas company that was not subject to suit in Texas," Brown wrote.

"In its brief on appeal, Union Pacific admits that it does not dispute that Richard dismissed his case in Texas at its request and with its agreement despite the fact that the record reflects that the notice of nonsuit in Texas was filed by Richard only and that the Texas court's order granted Richard's motion for nonsuit without prejudice."

Simply put, there is no evidence that Richard was attempting to "abuse the system" by delaying and harassing Union Pacific through a series of dismissals without prejudice, the Court said.

"Additionally, because the dismissal was entered into based, at least in part, on Union Pacific's request and to accommodate the railroad company so that it could file a third-party complaint in Arkansas, the dismissal was not an unreasonable exercise of Richard's unilateral right to dismiss his case," Brown wrote. "Rather, Richard's dismissal was done in no small part to benefit Union Pacific.

"It would be directly contrary to the purpose of Rule 41 for the two-dismissal rule to be employed under these circumstances."

From Legal Newsline: Reach Jessica Karmasek by email at

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