Great Lakes Insurance SE v. Crabtree

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-cv-81544-ALTMAN/Reinhart

GREAT LAKES INSURANCE SE,

Plaintiff,

v.

BRYAN CRABTREE, et al.,

Defendants.

_______________________________/

ORDER

When Bryan and Bethea Crabtree’s vessel was damaged in a fire, they turned to Great Lakes

(their insurer) for the proceeds of the boat’s insurance policy. Rather than cover the loss, though,

Great Lakes sued the Crabtrees in admiralty—seeking declaratory relief and arguing that it had no

duty to pay. But Great Lakes didn’t just sue the Crabtrees once: This lawsuit is now in its third iteration.

And, since the inception of our case, the Crabtrees have maintained that, by bringing this third suit,

Great Lakes violated Federal Rule of Civil Procedure 41(a)(1)(B)’s two-dismissal rule.

The parties have now filed their cross-motions for summary judgment, which we now resolve.1

Great Lakes filed its Motion for Summary Judgment (the “Plaintiff’s MSJ”) [ECF No. 118] on

November 10, 2021. In response—and for reasons we don’t quite understand—the Crabtrees filed a

Motion for Judgment on Partial Findings (the “Defs.’ MJPF”) [ECF No. 146] under Federal Rule of

Civil Procedure 52(c). In that MJPF, the Crabtrees reasserted their claim that Great Lakes had run

1 “Cross-motions for summary judgment will not, in themselves, warrant the court in granting

summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that

are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (cleaned up).

In adjudicating cross-motions, we consider each motion separately and, of course, resolve all

reasonable inferences against the movant. See Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331

(11th Cir. 2005).

afoul of Rule 41’s two-dismissal rule. But, since we were not yet in trial, the Defendants’ MJPF was

plainly premature.2

Still, because we thought the two-dismissal rule might dispose of this whole case, we gave the

parties the opportunity to brief the issue properly under Federal Rule of Civil Procedure 56(f). See Order

Requiring Rule 41 Briefing (the “Order”) [ECF No. 193]. Pursuant to our Order, the Crabtrees have

now filed their Motion for Summary Judgment (“Crabtrees’ MSJ”) [ECF No. 194], which is fully

briefed.3 After careful review, we hold that the two-dismissal rule “means precisely what it says,” Pilot

Freight Carriers, Inc. v. Int’l Bhd. of Teamsters, et al., 506 F.2d 914, 916 (5th Cir. 1975), and GRANT the

Crabtrees’ MSJ.

THE FACTS

Our Defendants, the Crabtrees, owned the S/V Brandison (the “Vessel”). See Statement of

Stipulated Facts (the “SOF”) [ECF No. 34] ¶ 1. In 2019, they applied to the Plaintiff, Great Lakes, for

a marine insurance policy to cover the Vessel. See Defs.’ Second Am. Answer and Affirmative

Defenses,4 Great Lakes Ins. SE v. Crabtree et al., No. 19-cv-00164-DLC (June 15, 2020), ECF No. 38 at

3 (admitting that the Crabtrees applied for insurance). On April 23, 2019, Great Lakes issued the

Vessel a policy that included $250,000.00 in coverage. See SOF ¶ 2. The parties disagree about several

fundamental questions relating to this policy—including, for instance, whether the policy was just a

2 Rule 52(c) provides that, “[i]f a party has been fully heard on an issue during a nonjury trial and the

court finds against the party on that issue, the court may enter judgment against the party on a claim

or defense that, under the controlling law, can be maintained or defeated only with a favorable finding

on that issue.” FED. R. CIV. P. 52(c) (emphasis added). Because we haven’t yet begun a trial in this

case, Rule 52(c) wasn’t the right procedural mechanism for the Crabtrees’ request.

3 See Great Lakes’s Response to the Crabtrees’ MSJ (“Response”) [ECF No. 199]; Crabtrees’ Reply in

Support of their MSJ (“Reply”) [ECF No. 200].

4 We’ll call this the “Answer.”

temporary policy conditioned on the Crabtrees’ compliance with certain requests by Great Lakes for

information. See Complaint [ECF No. 1] at 3–5;5 see also Answer at 3–6.

In any event, the Vessel was stored “on the hard” at a boat-storage and repair facility in Riviera

Beach, Florida. See Complaint at 4; see also Answer at 3–4 (admitting that the Vessel was “on the hard

at Cracker Boy Boat Works, located in Riviera Beach”). On May 7, 2019, a boat sitting next to the

Brandison was consumed by a fire that caused significant damage to the Vessel. See Complaint at 4;

see also Answer 3–4 (admitting that the “Defendants sustained sudden and accidental loss to their vessel

following fire onboard adjacent M/Y ‘SEA ALICE’ vessel”). After the fire, the Crabtrees filed a

Notice of Loss with Great Lakes and demanded payment of $250,000.00—the Vessel’s insured

value—under the policy. See SOF ¶ 4.

Great Lakes denied coverage, see Complaint at 4–6; SOF ¶ 5, and sued the Crabtrees in the

District of Montana, see generally Complaint, Great Lakes Ins. SE v. Crabtree et al., Case No. 19-cv-00120-

DLC (July 19, 2019), ECF No. 1.6 But Great Lakes voluntarily dismissed the first District of Montana

case, see Notice of Voluntary Dismissal, Great Lakes Ins. SE v. Crabtree et al., Case No. 19-cv-00120-

DLC (Sept. 4, 2019), ECF No. 5,7 “based on the Crabtrees’ attorneys’ clear representation that they

would accept service in Florida,” Order Denying Motion to Dismiss, Great Lakes Ins. SE v. Crabtree et

al., No. 19-cv-00164-DLC (Feb. 6, 2020), ECF No. 20 at 4.8 Great Lakes then sued the Crabtrees here

in the Southern District of Florida—only to voluntarily dismiss that second case as well. See Notice of

Voluntary Dismissal, Great Lakes Ins. SE v. Crabtree et al., Case No. 19-cv-23692-JEM (Oct. 8, 2019),

5 Because of an error in the Complaint’s paragraph numbering, see Complaint at 4–5 (containing two

sets of paragraphs 12 & 13), we cite to page, rather than paragraph, numbers.

6 This first District of Montana case was assigned to Judge Dana L. Christensen. As we’ll see, the second

Montana action was, before it was transferred to us, also assigned to Judge Christensen.

7 We’ll call this the “First Voluntary Dismissal.” It can be found on our docket at ECF No. 146-2.

8 Going forward, we’ll call this “Judge Christensen’s Order.”

ECF No. 11.9 In a confounding turn of events, Great Lakes then sued the Crabtrees again in the

District of Montana.10 See generally Complaint, Great Lakes Ins. SE v. Crabtree et al., No. 19-cv-00164-

DLC (Oct. 8, 2019), ECF No. 1; see also Judge Christensen’s Order at 3–4 (noting that this case was

filed after two prior voluntary dismissals).

While all of this was going on, the Crabtrees filed their own lawsuit against Great Lakes—and

others—in Florida state court. See generally Complaint, Crabtree v. Great Lakes Ins. SE et al., No. 2019-

028464-CA-01 (Sept. 26, 2019), ECF No. 2. The Crabtrees, acting pro se, then filed a motion to dismiss

the second District of Montana case, arguing that they were not properly served and that the court

thus lacked personal jurisdiction over them. See Defs.’ Motion to Dismiss, Great Lakes Ins. SE v.

Crabtree et al., No. 19-cv-00164-DLC (Dec. 13, 2019), ECF No. 11 at 1 (“Defendants were not served

this lawsuit as fraudulently indicated in the proof of service filed in this court[.]”); see also ibid. (“[T]he

lawsuit must be dismissed due to the court’s lack of jurisdiction.”).

It was at this point that the Crabtrees first raised the two-dismissal rule—in their Reply to the

Motion to Dismiss. See Defs.’ Reply in Support of the Motion to Dismiss, Great Lakes Ins. SE v. Crabtree

et al., No. 19-cv-00164-DLC (Feb. 3, 2020), ECF No. 17 at 1 (“Plaintiff has violated the two-dismissal

rule as unambiguously stated in Federal Rule of Civil Procedure 41(a)(1).”). Choosing to address this

forfeited argument, Judge Christensen allowed Great Lakes to file a sur-reply. See Order Allowing Sur-

Reply, Great Lakes Ins. SE v. Crabtree et al., No. 19-cv-00164-DLC (Feb. 4, 2020), ECF No. 18. Once

the issue was fully briefed, Judge Christensen denied the Crabtrees’ motion “[b]ecause it appear[ed]

9 As you may have guessed, we’ll call this the “Second Voluntary Dismissal.” It can be found on our

docket at ECF No. 146-3.

10 This second District of Montana case (No. 19-cv-00164-DLC) is really the same case that’s before us

now. So, while the case number changed when it was transferred to us, everything that was on the

docket in Case No. 19-cv-00164-DLC is on our docket in Case No. 20-cv-81544-RKA—bearing the

same ECF numbers. For clarity’s sake, though, we’ll cite the two cases separately as a way of

distinguishing the litigation before Judge Christensen from ours.

that the prior dismissals [were] attributable to gamesmanship on the part of the Crabtrees.” Judge

Christensen’s Order at 3. Undeterred, the Crabtrees continued to assert this (alleged) two-dismissal

violation as an affirmative defense. See Answer at 7 (“As their Second Affirmative Defense,

Defendants state that this Honorable District Court is devoid of subject matter jurisdiction due to

Plaintiff’s double voluntary dismissal, in violation of the ‘two dismissals rule’ of Federal Rule of Civil

Procedure 41(a)(1).”).

In any event, still insisting that Montana was an “improper” venue, the Crabtrees—now

represented by counsel—moved to transfer the case to Florida. See Brief in Support of the Defs.’

Unopposed Motion to Transfer, Great Lakes Ins. SE v. Crabtree et al., No. 19-cv-00164-DLC (Sept. 3,

2020), ECF No. 43 ¶ 36. In support, they reprised their argument that Great Lakes had violated the

two-dismissal rule. See id. ¶ 59 (“The Crabtrees respectfully maintain that GREAT LAKES violated

Fed. R. Civ. P. 41(a)(1)(B), and that GREAT LAKES should be held to its violation of the Federal

Rules.”). Because the Vessel was stored and damaged in South Florida—and given that the parties

were already litigating their issues in Florida state court—Judge Christensen transferred the case to us.

See Order Granting Motion to Transfer, Great Lakes Ins. SE v. Crabtree et al., No. 19-cv-00164-DLC

(Sept. 8, 2020), ECF No. 44; see also Notice of Case Transfer [ECF No. 45].

Once here, Great Lakes filed a Motion for Judgment on the Pleadings (“Plaintiff’s MJOP”)

[ECF No. 64]. In response, the Crabtrees again advanced their two-dismissal contentions. See Response

to the Plaintiff’s MJOP [ECF No. 70] ¶ 20 n.2 (“The Crabtrees note that their Request for the Court

to Revisit GREAT LAKES’ abject violation of the ‘two dismissals rule,’ within their Motion to

Transfer, has yet to be adjudicated and remains pending.”). On February 1, 2022, we held a hearing

on the Plaintiff’s MJOP. See Paperless Minute Entry [ECF No. 137]. Addressing the Defendants’

Second Affirmative Defense, we observed that Great Lakes’s position “conflict[s] with the plain

reading of the words in Rule 41 itself[.]”11 Feb. 1, 2022, MJOP Hr’g Tr. [ECF No. 146-1] at 22:12–13.

On Great Lakes’s request that we ignore the text of Rule 41 in cases where the parties agreed to one

of the dismissals, we noted that “the rule seems to create no such exception for cases in which the

two sides agree to the first dismissal, despite what the Ninth and Second Circuits have said on that

subject.” Id. at 22:19–22. But we left the “issue for another day,” id. at 23:8, and told the Crabtrees

that they could “reraise th[is] argument at summary judgment,” id. at 22:24–25. If, at that time, we

were “persuaded that the argument is correct,” that determination (we said) would “entitle [the

Crabtrees] to judgment as a matter of law[.]” Id. at 22:25–23:2.

When it came time for the parties to file their motions for summary judgment, though, we

received one from the Plaintiff—but none from the Defendants. See generally Docket. Instead, as we’ve

noted, the Crabtrees chose to file a Motion for Judgment on Partial Findings under Rule 52(c)—a

motion that’s properly filed only during trial. See FED. R. CIV. P. 52(c) (“If a party has been fully heard

on an issue during a nonjury trial . . . .” (emphasis added)). We thus denied the Defendants’ MJPF as

“premature and without prejudice.” Order at 3.

At the same time, given the agreed facts, it seemed clear to us that the Defendants’ MJPF

raised a pure question of law upon which summary judgment might be appropriate—viz., the

application of the “two-dismissal rule” set out in Rule 41(a)(1)(B). So, even though the parties had

already fully briefed the issue,12 we ordered the Defendants to file a motion for summary judgment

11 We also pointed out that the two-dismissal rule doesn’t “implicate[ ] the Court’s subject matter

jurisdiction.” Feb. 1, 2022, MJOP Hr’g Tr. at 19:20–21. “The Eleventh Circuit,” we said, “has

discussed the two-dismissal rule only as an issue of claim preclusion[.]” Id. at 19:18–19.

12 See Defs.’ MJPF; Plaintiff’s Response to the MJPF [ECF No. 157]; Defs.’ Reply in Support of the

MJPF [ECF No. 166].

addressing this question—and gave both parties one final opportunity to add any additional arguments

that might bear on its resolution. See Order at 3.13

THE LAW

Under Federal Rule of Civil Procedure 56(f), “[d]istrict courts unquestionably possess the

power to trigger summary judgment on their own initiative.” Massey v. Cong. Life Ins. Co., 116 F.3d

1414, 1417 (11th Cir. 1997) (collecting cases). “Under this rule, a court must give the parties notice

and an opportunity to be heard before ruling sua sponte on a claim.” Francis v. MSC Cruises, S.A., 835

F. App’x 512, 518 (11th Cir. 2020) (citing FED. R. CIV. P. 56(f)). The Eleventh Circuit distinguishes

“between sua sponte grants of summary judgment in cases that involve purely legal questions based on

complete evidentiary records, and cases that involve factual disputes where the non-moving party has

not had an adequate opportunity to develop the record.” Artistic Ent., Inc. v. City of Warner Robins, 331

F.3d 1196, 1201 (11th Cir. 2003). “In the first situation, when ‘a legal issue has been fully developed[]

and the evidentiary record is complete, summary judgment is entirely appropriate even if no formal notice

has been provided.’” Lance Toland v. Phoenix Ins. Co., 855 F. App’x 474, 481 (11th Cir. 2021) (quoting

Artistic, 331 F.3d at 1201–02).

ANALYSIS

Federal Rule of Civil Procedure 41(a)(1) “permits a plaintiff to dismiss an action without

prejudice only when he files a notice of dismissal before the defendant files an answer or motion for

summary judgment and only if the plaintiff has never previously dismissed an action ‘based on or

including the same claim.’” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394 (1990). “If the plaintiff

13 When we entered our Order, this issue had already been fully briefed twice. See Response at 1 (“For

what is now the third time, the parties are briefing the issue of the effect of Great Lakes’ two prior

dismissals.”); see also Defs.’ Reply in Support of the Motion to Dismiss, Great Lakes Ins. SE v. Crabtree

et al., No. 19-cv-00164-DLC (Feb. 3, 2020), ECF No. 17; Sur-Reply to the Motion to Dismiss, Great

Lakes Ins. SE v. Crabtree et al., No. 19-cv-00164-DLC (Feb. 5, 2020), ECF No. 19; Defs.’ MJPF;

Plaintiff’s Response to the MJPF; Defs.’ Reply in Support of the MJPF.

invokes Rule 41(a)(1) a second time for an ‘action based on or including the same claim,’ the action

must be dismissed with prejudice.” Ibid. This is what’s known as “the two dismissal rule.” ASX Inv.

Corp. v. Newton, 183 F.3d 1265, 1266 (11th Cir. 1999); see also Sealey v. Branch Banking & Tr. Co., 693 F.

App’x 830, 834 (11th Cir. 2017) (“[U]nder the so-called two-dismissal rule, ‘if the plaintiff previously

dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal

operates as an adjudication on the merits.’” (quoting FED. R. CIV. P. 41(a)(1)(B))).

The Crabtrees ask us to apply this Rule here. Great Lakes unsurprisingly asks us not to. Still,

it “concedes that the two prior dismissals were in competent courts, the parties were the same, and

the claims were the same.” Response at 13. So, the only issue before us—one of first impression in

our Circuit—is whether the two-dismissal rule applies when (as here) one of the plaintiff’s dismissals

wasn’t unilateral (i.e., where the plaintiff and the defendant informally agreed to one of the two

dismissals). Applying the plain meaning of the words in Rule 41, we hold that it does.

I. Rule 41

“We give the Federal Rules of Civil Procedure their plain meaning.” Sargeant v. Hall, 951 F.3d

1280, 1283 (11th Cir. 2020) (quoting Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533,

540 (1991)); see also A. SCALIA & B. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS

56 (2012) (“The words of a governing text are of paramount concern, and what they convey, in their

context, is what the text means.”). We start, then, by examining the text of Rule 41, which (in pertinent

part) says: “Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if

the plaintiff previously dismissed any federal- or state-court action based on or including the same

claim, a notice of dismissal operates as an adjudication on the merits.” FED. R. CIV. P. 41(a)(1)(B). The

plain meaning of these words is unmistakable: Two dismissals of any identical action triggers the two-

dismissal rule. See United States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an

expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’” (quoting WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 97 (1976))); Merritt v. Dillard Paper Co., 120 F.3d 1181,

1186 (11th Cir. 1997) (“[T]he adjective ‘any’ is not ambiguous; it has a well-established meaning. . . .

Here, as in Gonzales, ‘Congress did not add any language limiting the breadth of that word,’ so ‘any’

means all.” (quoting Gonzales, 520 U.S. at 5)).

Looking to the text’s plain language, then, we ask only two questions: (1) Did the plaintiff dismiss

two prior cases? (2) If so, are all three cases—this case plus the two dismissed cases—based on or

including the same claim? The Rule plainly “does not require an inquiry into the circumstances of the

two dismissals.” Lake at Las Vegas Invs. Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 727 (9th Cir.

1991). And our case unambiguously meets both elements: (1) Great Lakes voluntarily dismissed two

identical actions (one in the District of Montana and one in this District) (2) before it refiled this

identical case in Montana.14

As Great Lakes points out, though, two federal circuit courts have held that the two-dismissal

rule doesn’t apply where (as here) the defendant agreed to one of the two dismissals. See Poloron Prod.,

Inc. v. Lybrand Ross Bros. & Montgomery, 534 F.2d 1012, 1018–19 (2d Cir. 1976) (“[W]e hold that the

filing of a notice of dismissal preceded by a dismissal by stipulation knowingly consented to by all

parties does not activate the ‘two dismissal’ bar against bringing an action based on or including the

same claim.”);15 TCW Special Credits v. Fishing Vessel Chloe Z, 238 F.3d 431, at *2 (9th Cir. 2000)

(“Although the Hawaii dismissal was not formally ‘stipulated,’ it was not unilateral as all parties tacitly

14 Again, Judge Christensen transferred the Montana case (the third iteration of this dispute) to us. See

Order Granting Motion to Transfer, Great Lakes Ins. SE v. Crabtree et al., No. 19-cv-00164-DLC (Sept.

8, 2020), ECF No. 44; see also Notice of Case Transfer [ECF No. 45].

15 Poloron, in fairness, is somewhat different than our case because the first dismissal there was by joint

stipulation. In our case, by contrast, the plaintiff (alone) filed a Notice of Voluntary Dismissal in

Montana—even though, admittedly, it did so only after getting the Crabtrees’ agreement.

agreed to the dismissal in favor of litigating the action in Guam. Also, there is no evidence that the

filings and dismissals were part of a strategy to harass the CHLOE Z.”).16

But, in the world of the law, two plus nine doesn’t always equal eleven. See Arriaga v. Fla. Pac.

Farms, LLC, 305 F.3d 1228, 1240 n.15 (11th Cir. 2002) (“[O]nly the decisions of the Supreme Court

and this court are binding on the district courts of this circuit.”). And we (sitting here in the Eleventh

Circuit) just don’t find these cases persuasive. As we’ve said, the two-dismissal rule applies “if the

plaintiff previously dismissed any federal or state-court action based on or including the same claim.”

FED. R. CIV. P. 41(a)(1)(B). It doesn’t say that its provisions are triggered “if the plaintiff unilaterally

dismissed any action,” and it carves out no exceptions for situations in which the defendant agreed to

one of the prior dismissals (in bad faith or otherwise). By reading this exception into the Rule, the

Second and Ninth Circuits have—to our mind—improperly entertained “a-textual reflections that

elevate considerations of policy over the plain meaning of the Rule’s text.” Torres v. Wal-Mart Stores E.,

L.P., 555 F. Supp. 3d 1276, 1291 (S.D. Fla. 2021) (Altman, J.).

The Eleventh Circuit (it’s true) seems to have cited Poloron favorably—albeit for an unrelated

point and in dicta. See ASX, 183 F.3d at 1268 (relying on Poloron for the proposition that “the primary

purpose of the ‘two dismissal’ rule is to prevent an unreasonable use of the plaintiff’s unilateral right

to dismiss an action prior to the filing of the defendant’s responsive pleading”).17 In that same case,

though, the Eleventh Circuit made clear that, “in construing the two dismissal rule, we look to the

plain language of the rule and read it as a whole, being mindful of the linguistic choices made by the

drafters.” Id. at 1267. And the fact is that the “purpose of the rule is not an element of its literal

16 TCW is an unpublished case. By the Ninth Circuit’s own rules, therefore, it is “not precedent” except

in discrete circumstances not applicable here. See 9th Cir. R. 36-3 (citation of unpublished opinions).

17 We refer to this portion of ASX as dicta because the Circuit expressly noted that its citation to Poloron

was “not pivotal to our analysis[.]” ASX, 183 F.3d at 1268.

application.” Kerr Corp. v. Westside Res., Inc., (W.D. Wis. Sept. 27, 2007), aff’d, 273 F. App’x 944 (Fed.

Cir. 2008).

“As we see things, our interpretation neither adds anything to nor subtracts anything from the

[Rule’s] language[.]” Sargeant, 951 F.3d at 1284 (cleaned up). Great Lakes, by contrast, asks us to read

into the Rule an exception that simply doesn’t appear there. But that’s not our job—to add things to

the Rules in an effort to make them fairer, more efficient, or more just. See SCALIA & GARNER at 93

(“Nothing is to be added to what the text states or reasonably implies (casus omissus pro omisso habendus

est.”)); Pinares v. United Techs. Corp., 973 F.3d 1254, 1262 (11th Cir. 2020) (“Where Congress knows

how to say something but chooses not to, its silence is controlling.” (quoting Animal Legal Def. Fund

v. U.S. Dep’t of Agric., 789 F.3d 1206, 1217 (11th Cir. 2015))); Jama v. Immigr. & Customs Enf’t, 543 U.S.

335, 341 (2005) (“We do not lightly assume that Congress has omitted from its adopted text

requirements that it nonetheless intends to apply[.]”); cf. Savage Servs. Corp. v. United States, 25 F.4th 925,

935 (11th Cir. 2022) (refusing to read into the Oil Pollution Act a waiver of sovereign immunity

because “Congress . . . knows how to waive sovereign immunity when it wants to”).

Great Lakes also points us to a decision from our Court where the district judge had this to

say about the two-dismissal rule: “It is clear that the two dismissal rule does not apply where the

defendant consents to one or more of the voluntary dismissals.” W. Grp. Nurseries, Inc. v. Ergas, 211 F.

Supp. 2d 1362, 1371 (S.D. Fla. 2002) (Hoeveler, J.). But “[a] decision of a federal district court judge

is not binding precedent in either a different judicial district, the same judicial district, or even upon

the same judge in a different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (cleaned up) (quoting

18 J. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 134.02[1][d] (3d ed. 2011)); see also Gables Ins.

Recovery v. United Healthcare Ins. Co., 39 F. Supp. 3d 1377, 1383 n.5 (S.D. Fla. 2013) (Altonaga, J.) (same).

We, in short, decline Great Lakes’s invitation to “elaborate unprovided-for exceptions” to

Rule 41. SCALIA & GARNER at 93. “The two-dismissal rule is a narrowly tailored and potentially harsh

rule, but the language is clear,” and “we must apply it as written.” Cabot Golf CL-PP 1, LLC v. Nixon

Peabody, LLP, 575 F. App’x 216, 218–19 (5th Cir. 2014).18 “And we needn’t speculate further about

whether this Rule makes sense because, ‘[i]f Congress had wanted’ us to use a different metric, ‘it

would have said so.’” Torres, 555 F. Supp. 3d at 1291 (quoting Fla. State Conf. of N.A.A.C.P. v. Browning,

522 F.3d 1153, 1172 (11th Cir. 2008)).

* * *

In a last-ditch effort to circumvent the clear language of Rule 41, Great Lakes presses three

arguments—all unavailing. First, the Plaintiff insists that granting summary judgment in favor of the

Defendants “would not serve the purposes of res judicata[.]” Response at 14. Second, it contends that

departing from Judge Christensen’s ruling on the application of the two-dismissal rule would

constitute “a waste of judicial resources.” Id. at 15. Third, it “posits that the Defendants already moved

for summary judgment on this issue in their Motion to Dismiss [ECF No. 11], or more specifically, in

their Reply in Support [ECF No. 17].” Id. at 17. We address—and reject—each argument in turn.

First, the “purposes of res judicata” cannot supersede the unambiguous text of Rule 41. As

we’ve said, the text of Rule 41 is clear, and “purpose . . . cannot be used to contradict text or to

supplement it.” SCALIA & GARNER at 57; see also ibid. (“Purpose sheds light only on deciding which of

various textually permissible meanings should be adopted. No text pursues its purpose at all costs.”

18 The facts of Cabot are instructive here. The plaintiff there “filed three virtually identical lawsuits: one

in California state court, one in California federal court, and [one in the Eastern District of Texas].”

575 F. App’x at 217. Plaintiff’s counsel (as in our case) “discussed with the defendants’ counsel

pursuing a single action in a single forum, but he did not obtain a stipulation of dismissal signed by all

parties under Rule 41(a)(1)(A)(ii).” Ibid. Instead, he “voluntarily dismissed the California state action .

. . then filed a notice of dismissal in the California federal action,” leaving only the Texas federal action.

Ibid. Although the parties had discussed dismissing the other cases, the Fifth Circuit considered the

notices of dismissal to be “unilateral[.]” Ibid. The panel upheld the district court’s dismissal of Cabot’s

claims despite his argument that “it is harsh and does not promote the rule’s goal of preventing

unreasonable abuse and harassment.” Id. at 218 (cleaned up). The panel determined that,

“[u]nfortunately, although the rule may be harsh under these circumstances, the language is clear, and

[it must be] appl[ied] . . . as written.” Ibid. So too here.

(emphasis in original)). “As with a statute, our inquiry is complete if we find the text of the Rule to be

clear and unambiguous.” Bus. Guides, 498 U.S. at 540–41.

In any event, we don’t necessarily agree with Great Lakes that our decision today contravenes

the purposes of res judicata. “The purpose behind the doctrine of res judicata is that the ‘full and fair

opportunity to litigate protects [a party’s] adversaries from the expense and vexation attending multiple

lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the

possibility of inconsistent decisions.’” Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999)

(quoting Montana v. United States, 440 U.S. 147, 153–54 (1979)). Great Lakes tells us that these purposes

“would not be served in this instance, where it is clear that any burden to the Defendants or waste of

judicial resources was solely the result of the Defendants’ (or their counsel’s) own vexatious litigation

tactics and attempts at forum shopping.” Response at 15. But, having reviewed this case in some detail,

we think it far from “clear” that only the Crabtrees engaged in forum shopping.19 Again, though,

whatever the merits of Great Lakes’s gamesmanship accusations, we choose to follow the Rule’s

text—which plainly governs our case.

Second, we disagree that we should ignore a clear misapplication of the law in the service of

judicial expedience. A judge’s job “is to get it right[.]” United States v. Undetermined Quantities of All

Articles of Finished & In-Process Foods, 936 F.3d 1341, 1350 (11th Cir. 2019). We thus don’t have the

19 Great Lakes repeatedly points out that the “Temporary Binder contains a forum selection clause

which states that suit can only be brought in the federal district court within which the Insured or the

Insured’s agent resides.” Plaintiff’s Response SOF [ECF No. 198] ¶ 14 (emphasis added). According to

Great Lakes, “[t]he only address the Insureds provided on their Application was in Kalispell, MT.” Id.

¶ 15 n.1. That’s true. See Application [ECF No. 1-1] at 1. But, while the Crabtrees may have provided

a mailing address in Montana, their application clearly notes that they reside in Georgia. Ibid. At a

minimum, then, Great Lakes had a choice between filing in Montana and filing in Georgia. See

Temporary Binder [ECF No. 1-2] at 16 (“[A]ny dispute arising hereunder shall be subject to the

exclusive jurisdiction of the . . . Federal District court within which you the Assured resides or the

Federal District Court within which your insurance agent resides.” (emphases added)). And Great Lakes

doesn’t explain why it chose to file twice in Montana.

luxury of disregarding a clearly erroneous ruling—whether to save judicial resources or for some other

noble purpose.20 In any event, it would have been a tremendous waste of judicial resources for us to

adjudicate the motions for summary judgment and then have the lawyers prepare (and sit through) a

lengthy (and costly) trial only to grant the Defendants’ timely (and viable) Rule 52(c) motion at the

end of the case.

Third—and for two reasons—we reject the Plaintiff’s suggestion that, because the Crabtrees’

Motion to Dismiss “referenced matters outside the pleadings, i.e., the history of prior dismissals, [it]

should be considered a motion for summary judgment.” Response at 17.

One, the procedural history of our case (including the two prior dismissals) is a matter of public

record, and “a district court may take judicial notice of matters of public record without converting a

motion to dismiss into one for summary judgment.” Klopfenstein v. Deutsche Bank Sec., Inc., 592 F. App’x

812, 816 (11th Cir. 2014). Normally, on a motion to dismiss, a court should constrain its analysis to

the four corners of the complaint. Here, though, Judge Christensen properly took judicial notice of

20 To the extent Great Lakes is suggesting that Judge Christensen’s prior ruling on the two-dismissal

issue should be “conclusive,” Response at 15, we disagree. Judge Christensen issued her order in the

same case that’s now before us. So, there has never been a “final judgment on the merits” on this issue.

Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999) (“Under Eleventh Circuit precedent,

a claim will be barred by prior litigation if all four of the following elements are present: (1) there is a

final judgment on the merits; (2) the decision was rendered by a court of competent jurisdiction; (3)

the parties, or those in privity with them, are identical in both suits; and (4) the same cause of action

is involved in both cases.”). Without a final judgment, we have “ample discretion” to reconsider Judge

Christensen’s decision. Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1232 (11th Cir. 2010) (quoting

Lanier Const., Inc. v. Carbone Props. of Mobile, LLC, 253 F. App’x. 861, 863 (11th Cir. 2007)). Under Rule

54(b), “any order or other decision, however designated, that adjudicates fewer than all the claims or

the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a

judgment adjudicating all the claims and all the parties’ rights and liabilities.” FED. R. CIV. P. 54(b)

(emphasis added). And the Supreme Court has been clear that “every order short of a final decree is

subject to reopening at the discretion of the district judge.” Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 12 (1983); see also Dietz v. Bouldin, 579 U.S. 40, 46 (2016) (“[T]he Court has recognized

that a district court ordinarily has the power to modify or rescind its orders at any point prior to final

judgment in a civil case.”). Because we think the prior order was wrong, we’re well within our

discretion to correct it.

the two dismissals in Great Lakes’s other federal cases. As the Eleventh Circuit has explained, “Fed. R.

Evid. 201(b) provides for taking judicial notice of facts that are not subject to reasonable dispute

because they are capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999);

see also SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010) (“In ruling

upon a motion to dismiss, the district court may consider an extrinsic document if it is (1) central to

the plaintiff’s claim, and (2) its authenticity is not challenged.” (citing Day v. Taylor, 400 F.3d 1272,

1276 (11th Cir. 2005))).21 And the Eleventh Circuit has repeatedly said that court records contain just

those kinds of facts. See United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (“[A] court may take

judicial notice of a document filed in another court not for the truth of the matters asserted in the

other litigation, but rather to establish the fact of such litigation and related filings. Accordingly, a

court may take notice of another court’s order only for the limited purpose of recognizing the ‘judicial

act’ that the order represents or the subject matter of the litigation.” (cleaned up)); Universal Express,

Inc. v. U.S. S.E.C., 177 F. App’x 52, 53–54 (11th Cir. 2006) (“A district court may take judicial notice

of certain facts without converting a motion to dismiss into a motion for summary judgment. Public

records are among the permissible facts that a district court may consider.” (cleaned up)); Horne v.

Potter, 392 F. App’x 800, 802 (11th Cir. 2010) (“The district court properly took judicial notice of the

documents in Horne’s first case, which were public records that were ‘not subject to reasonable

dispute’ because they were ‘capable of accurate and ready determination by resort to sources whose

accuracy could not reasonably be questioned.’” (quoting FED. R. EVID. 201(b))). Because Judge

Christensen took judicial notice of Great Lakes’s prior voluntary dismissals only to “determin[e] what

21 Great Lakes (notably) does not dispute the authenticity of the records of the prior dismissals—nor

does it disagree that those dismissals occurred. See Great Lakes’s Response to the Motion to Dismiss

[ECF Nos. 14-3, 14-5] (attaching copies of both voluntary dismissals).

happened in the course of [the prior] proceeding[s],” Kerruish v. Essex Holdings, Inc., 777 F. App’x 285,

293 (11th Cir. 2019), she was right to adjudicate the Crabtrees’ Motion to Dismiss without converting

it into a motion for summary judgment.

Two, and in any event, Great Lakes should have raised this argument when the Motion to

Dismiss was pending before Judge Christensen.22 By advancing the argument for the first time now—

more than two-and-a-half years after Judge Christensen resolved that motion—Great Lakes has

forfeited the issue. See United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc) (“[F]ailure

to raise an issue in an initial brief . . . should be treated as a forfeiture of the issue, and therefore the

issue may be raised by the court sua sponte [only] in extraordinary circumstances.”); In re Egidi, 571

F.3d 1156, 1163 (11th Cir. 2009) (“Arguments not properly presented . . . are deemed [forfeited].”).

CONCLUSION

After careful review, therefore, we ORDER AND ADJUDGE as follows:

1. The Crabtrees’ MSJ [ECF No. 194] is GRANTED.

2. The Plaintiffs’ MSJ [ECF No. 118] is DENIED as moot.

3. This case shall remain CLOSED. All pending motions are DENIED as moot and all

deadlines are TERMINATED.

4. Pursuant to FED. R. CIV. P. 58, we’ll enter final judgment separately.

DONE AND ORDERED in the Southern District of Florida on May 18, 2023.

22 And Great Lakes never raised this argument before Judge Christensen. See generally Sur-Reply to the

Motion to Dismiss, Great Lakes Ins. SE v. Crabtree et al., No. 19-cv-00164-DLC (Feb. 5, 2020), ECF

No. 19.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

CC: Counsel of Record

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