holding that Rule 41 codified the common law rule that a dismissal on a ground not going to the merits was not a bar to a subsequent action on the same claim, and further explaining that the policy behind treating certain dismissals under Rule 41 as on the merits and certain others as not being on the merits is that only those where “the defendant has been put to the trouble of preparing his defense because there was no initial bar to the Court’s reaching the merits” create a bar to a subsequent action
How later courts described this case
- holding that Rule 41 codified the common law rule that a dismissal on a ground not going to the merits was not a bar to a subsequent action on the same claim, and further explaining that the policy behind treating certain dismissals under Rule 41 as on the merits and certain others as not being on the merits is that only those where “the defendant has been put to the trouble of preparing his defense because there was no initial bar to the Court’s reaching the merits” create a bar to a subsequent action
- holding that “a sua sponte dismissal by the Court for failure of the plaintiff to comply with an order of the Court” should operate as an adjudication on the merits because “the defendant has been put to the trouble of preparing his defense because there was no initial bar to the Court’s reaching the merits”
- explaining that dismissals based upon the “failure of the plaintiff to prosecute, or to comply with the [rjules of [cjivil [procedure, or to comply with an order of the [c]ourt, or to present evidence showing a right to relief on the facts and the law” operate as “adjudications on the merits”
- holding that dismissal ______ -9- Affirmed. See 1st Cir. R. 27.1. ________ ___ ____________________ of denaturalization proceedings for defective affidavit of good cause was for lack of jurisdiction and did not bar subsequent proceeding on proper affidavit
Written by the judges who cited it.
Later courts went against this
Disagreed with by United States v. Morris Weintraub, 613 F.2d 612 (1979)
We disagree with this reading of Costello.
The opinion
Mr. Justice Douglas,
with whom Mr. Justice Black concurs,
dissenting.
I do not think “bootlegging” per se would have been a ground for denying naturalization to an alien in the 1920’s. If it were, it would be an act of hypocrisy unparalleled in American life. For the “bootlegger” in those days came into being because of the demand of the great bulk of people in our communities — including lawyers, prosecutors, and judges — for his products. However that may be, the forms of naturalization in use at the time did not ask for disclosure of all business activities of an applicant or of all sources of income. If that had been asked and if only one source of income were disclosed, then there would be a concealment relevant to our present problem — whether the nondisclosed income was from bootlegging, playing the races, bridge or poker games, or something else. The “occupation” of an applicant was *289 the question in the form Costello filed. * The form of the petition for naturalization did not ask for more; and unless we can say that “real estate” was not his “occupation” then we cannot let this denaturalization order stand. The Koslo Realty Corporation actually existed and petitioner was its president. It actually engaged in real estate transactions. The fact that this real estate business was secondary in petitioner’s regime did not make it any the less his “occupation.” Petitioner answered truthfully when he listed “real estate” as his “occupation.” He did not answer truthfully if the answer is taken to embrace all his sources of income. But, as I said, the form did not require that complete disclosure; and I would not resolve any ambiguity in favor of the Government. We could not do so and be true to the strict standard exacted from the Government by Schneiderman v. United States, 320 U. S. 118, 122-123 .
The printed form of the Petition for Naturalization in use at the time had in it as item “Second” a line headed “My occupation is.” After these words petitioner entered the words “Real Estate.”