Amicus Curiae Brief — Gary Waetzig, Petitioner v. Halliburton Energy Services, Inc.

No. 23-971

In the

Supreme Court of the United States

GARY WAETZIG,

Petitioner,

v.

HALLIBURTON ENERGY SERVICES, INC.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF OF AMICUS CURIAE THE CHAMBER

OF COMMERCE OF THE UNITED STATES OF

AMERICA IN SUPPORT OF RESPONDENT

CARLA G. GRAFF

BRIAN A. KULP

ANTHONY R. JADICK

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

MICAELA SCOTTI

DECHERT LLP

3 Bryant Park

1095 Avenue of the

Americas

New York, NY 10036

STEVEN A. ENGEL

MICHAEL H. MCGINLEY

Counsel of Record

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3378

michael.mcginley@dechert.com

JENNIFER B. DICKEY

KEVIN R. PALMER

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

Counsel for Amicus Curiae

December 26, 2024

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE........................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................... 2

ARGUMENT .............................................................. 4

I.

A Rule 41(a)(1) Voluntary Dismissal Is Not a

“Final Judgment, Order, or Proceeding” .......... 4

A.

A Rule 41(a)(1) Voluntary Dismissal

Leaves the Parties as if No Action Has

Been Brought ............................................. 4

B.

A Rule 41(a)(1) Voluntary Dismissal Is

Not a “Final” “Judgment” or “Order” ........ 7

C.

A Rule 41(a)(1) Voluntary Dismissal Is

Not a “Final” “Proceeding” ...................... 11

D.

Adopting Petitioner’s Contrary Position

Would Undermine the Basic Policies

of the Federal Rules and Statutes of

Limitations .............................................. 14

II. Even If a Rule 41(a)(1) Dismissal Is a Final

Proceeding, This Court Should Make Clear

that Rule 60(b) Provides No Avenue for Relief

Here ................................................................... 16

CONCLUSION ........................................................ 20

ii

TABLE OF AUTHORITIES

Cases

Ackermann v. United States,

340 U.S. 193 (1950) ......................................... 17-19

Agostini v. Felton,

521 U.S. 203 (1997) ............................................... 17

Badgerow v. Walters,

596 U.S. 1 (2022) ............................................. 17, 18

Banister v. Davis,

590 U.S. 504 (2020) ............................................... 14

Blue v. D.C. Pub. Schs.,

764 F.3d 11 (D.C. Cir. 2014) .................................. 10

BP P.L.C. v. Mayor & City Council of Balt.,

593 U.S. 230 (2021) ................................................. 8

Brownback v. King,

592 U.S. 209 (2021) ................................................. 9

Bus. Guides, Inc. v. Chromatic Commc’ns

Enters., Inc.,

498 U.S. 533 (1991) ................................................. 2

Catlin v. United States,

324 U.S. 229 (1945) ............................................... 10

City of Aurora v. West,

74 U.S. (7 Wall.) 82 (1868) ...................................... 5

Coca-Cola Co. v. City of Atlanta,

110 S.E. 730 (Ga. 1922) ......................................... 11

Cone v. W. Va. Pulp & Paper Co.,

330 U.S. 212 (1947) ............................................. 5, 6

iii

Cooter & Gell v. Martmarx Corp.,

496 U.S. 384 (1990) ........................................... 6, 15

Cunningham v. Hamilton County,

527 U.S. 198 (1999) ............................................... 10

El Reno Wholesale Grocery Co. v. Taylor,

209 P. 749 (Okla. 1922) ......................................... 11

Erie Ins. Exch. ex rel. Stephenson v. Erie Indem.

Co.,

68 F.4th 815 (3d Cir. 2023) ...................................... 7

Ex parte Skinner & Eddy Corp.,

265 U.S. 86 (1924) ................................................... 4

G. Amsinck & Co. v. Springfield Grocer Co.,

7 F.2d 855 (8th Cir. 1925) ........................................ 9

Gaddis v. DeMattei,

30 F.4th 625 (7th Cir. 2022) .................................. 10

Galaza v. Wolf,

954 F.3d 1267 (9th Cir. 2020) ................................ 10

Gonzalez v. Crosby,

545 U.S. 524 (2005) ......................................3, 16-18

Jones v. SEC,

298 U.S. 1 (1936) ..................................................... 4

Kapco Mfg. Co. v. C & O Enters., Inc.,

773 F.2d 151 (7th Cir. 1985) .................................. 10

Kemp v. United States,

596 U.S. 528 (2022) ......................................... 16-18

Klapprott v. United States,

335 U.S. 601 (1949) ............................................... 18

Lagos v. United States,

584 U.S. 577 (2018) ............................................... 13

iv

Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847 (1988) ......................................3, 16-19

McCann v. Bentley Stores Corp.,

34 F. Supp. 234 (W.D. Mo. 1940) ............................. 6

Md. Cas. Co. v. Latham,

41 F.2d 312 (5th Cir. 1930) ...................................... 5

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,

886 F.3d 803 (9th Cir. 2018) .................................. 10

Pioneer Inv. Servs. Co. v. Brunswick Assocs.

Ltd. P’ship,

507 U.S. 380 (1993) ......................................... 18, 19

Rotella v. Wood,

528 U.S. 549 (2000) ............................................... 14

Ruch v. State,

146 N.E. 67 (Ohio 1924) ........................................ 11

Semtek Int’l Inc. v. Lockheed Martin Corp.,

531 U.S. 497 (2001) ........................................... 7, 14

Societe Nationale Industrielle Aerospatiale v. U.S.

Dist. Ct. for the S. Dist. of Iowa,

482 U.S. 522 (1987) ............................................... 14

State Treasurer of Mich. v. Barry,

168 F.3d 8 (11th Cir. 1999) ...................................... 7

Torres v. Chater,

125 F.3d 166 (3d Cir. 1997) ................................... 10

United States v. Williams,

553 U.S. 285 (2008) ............................................... 13

Wellfount, Corp. v. Hennis Care Centre of Bolivar, Inc.,

951 F.3d 769 (6th Cir. 2020) .................................. 15

v

Williams v. Clarke,

82 F.3d 270 (8th Cir. 1996) ...................................... 7

Wilson v. City of San Jose,

111 F.3d 688 (9th Cir. 1997) .............................. 8, 12

Wis. Cent. Ltd. v. United States,

585 U.S. 274 (2018) ................................................. 2

Yates v. United States,

574 U.S. 528 (2015) ............................................... 13

Statutes

28 U.S.C. § 1291 ........................................................ 10

Rules and Regulations

Fed. R. Civ. P. 1 ...................................................... 4, 14

Fed. R. Civ. P. 41(a)(1) ................................................. 8

Fed. R. Civ. P. 41(a)(1)(A) ........................................ 3, 6

Fed. R. Civ. P. 41(a)(1)(A)(i) ......................................... 6

Fed. R. Civ. P. 41(a)(1)(B) ............................................ 6

Fed. R. Civ. P. 54(a)...................................................... 9

Fed. R. Civ. P. 60 ........................................................ 13

Fed. R. Civ. P. 60(b)........................................ 2, 3, 7, 16

Fed. R. Civ. P. 60(b)(1) ..................................... 3, 16, 18

Fed. R. Civ. P. 60(b)(6) ........................................... 3, 16

Fed. R. Civ. P. 60(c)(1)...................................... 3, 16, 17

Other Authorities

Black’s Law Dictionary (3d ed. 1933) ......... 8, 9, 11, 12

Black’s Law Dictionary (7th ed. 1999) ........................ 7

vi

Black’s Law Dictionary (12th ed. 2024) .................. 8, 9

Neal C. Head, The History and Development of

Nonsuit, 27 W. Va. L.Q. 20 (1920) ....................... 5, 7

Fed. R. Civ. P. 60(b) advisory committee’s note to

1946 amendment ................................................... 12

8 James Wm. Moore et al., Moore’s Federal

Practice § 41.33[1] (3d ed. 2024) ............................. 7

12 James Wm. Moore et al., Moore’s Federal

Practice § 60.48[3][b] (3d ed. 2024). ...................... 19

Note, Absolute Dismissal Under Federal Rule

41(a): The Disappearing Right of Voluntary

Nonsuit, 63 Yale L.J. 738 (1954) ............................. 6

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) .............. 13

Webster’s New Collegiate Dictionary (6th ed. 1949) ... 8

9 Charles A. Wright & Arthur R. Miller, Federal

Practice & Procedure § 2367 (4th ed. 2024) ..... 7, 12

1

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 members and

indirectly represents the interests of more than three

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members

in matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber regularly files

amicus curiae briefs in cases, like this one, that raise

issues of concern to the Nation’s business community.

The Chamber has a strong interest in the proper

disposition of this case. Its members are frequently

defendants in federal court, and that litigation is often

fraught with procedural abuse by plaintiffs and their

attorneys. This case provides a prime example.

Petitioner voluntarily dismissed his suit without

prejudice because he was contractually obligated to

arbitrate the matter. He lost in that arbitration. But

then, dissatisfied with the outcome of the arbitration,

he returned to federal court and moved to vacate his

notice of voluntary dismissal more than a year after

its filing—and after the limitations period on his claim

had expired. That maneuver finds no support in the

Federal Rules of Civil Procedure. And permitting it

would only thwart the policies of expedience, peace,

No counsel for any party authored this brief in whole or in part,

and no party or counsel made a monetary contribution to the

preparation or submission of this brief. No person other than

amicus curiae, its members, or its counsel made a monetary

contribution to the preparation or submission of this brief.

1

2

and repose that the Federal Rules of Civil Procedure

and statutes of limitations are designed to protect.

The Chamber has a significant interest in avoiding

that abusive and inefficient procedural regime. It

thus submits this brief in support of Respondent and

affirmance of the judgment below.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Rule 41(a)(1) codifies a common-law procedure that

affords plaintiffs a one-time opportunity to voluntarily

abandon their lawsuit free from repercussions. No

judicial involvement is needed to carry out that action.

Rather, the plaintiff simply files a piece of paper with

the district court known as a notice of voluntary

dismissal. Where, as here, the plaintiff dismisses

without prejudice, that filing returns the parties to the

status quo. The plaintiff then has the opportunity to

refile the same cause of action against the same

defendant in the same (or another) court. Indeed, he

could do so the very next day.

The issue in this case is whether Rule 60(b)

authorizes a plaintiff to unwind that voluntary and

unilateral action. It does not. This Court interprets

the Federal Rules of Civil Procedure as it would any

statute. See Bus. Guides, Inc. v. Chromatic Commc’ns

Enters., Inc., 498 U.S. 533, 540-41 (1991). And that

means its task, as always, “is to interpret the words

consistent with their ordinary meaning at the time” of

enactment. Wis. Cent. Ltd. v. United States, 585 U.S.

274, 277 (2018) (alteration adopted; quotation marks

omitted). By its plain terms, Rule 60(b) authorizes

relief only “from a final judgment, order, or

proceeding.” Fed. R. Civ. P. 60(b). A notice of dismissal

3

without prejudice is not “final” because it allows the

plaintiff to refile his action. At the same time, the

notice is neither an “order,” nor a “judgment,” nor a

“proceeding.” When the Federal Rules were adopted

in 1938, those three terms were ordinarily understood

to refer to the actions of a judge or a court. But

Petitioner’s notice here effectuated the dismissal at

his own behest, “Without a Court Order.” Fed. R. Civ.

P. 41(a)(1)(A).

And even if the Court could view Petitioner’s filing

as a “final judgment, order, or proceeding,” Rule 60(b)

would still provide no “Grounds for Relief.” Fed. R.

Civ. P. 60(b). Petitioner moved to vacate his voluntary

dismissal under Rule 60(b)(1) and Rule 60(b)(6). But

his motion came “more than a year” after the notice of

dismissal, so Rule 60(b)(1) cannot possibly apply. Fed.

R. Civ. P. 60(c)(1). Nor can Rule 60(b)(6). Relief under

that provision “requires a showing of ‘extraordinary

circumstances’” not covered by any of the other

provisions of Rule 60(b). Gonzalez v. Crosby, 545 U.S.

524, 536 (2005). The circumstances alleged here

(dissatisfaction with the outcome of binding

arbitration) are far from extraordinary.

And

Petitioner cannot avail himself of Rule 60(b)(6)’s

“other reason” language at any rate, because his

motion sounds in reasons that are specifically covered

by Rule 60(b)(1)—namely, his own “mistake,

inadvertence, surprise, or excusable neglect.” To hold

otherwise would disregard the plain language of Rule

60(b)(6) and enable Petitioner “to circumvent the 1year limitations period that applies to clause (1).”

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.

847, 863 n.11 (1988). Moreover, it would expose

parties and courts to nuisance litigation following the

4

routine disposition of lawsuits, driving up attorney

fees and costs. That is not the sort of “just, speedy, and

inexpensive” resolution of claims that the Federal

Rules promise litigants. Fed. R. Civ. P. 1.

For all these reasons, the judgment below should

be affirmed.

ARGUMENT

I. A Rule 41(a)(1) Voluntary Dismissal Is Not a

“Final Judgment, Order, or Proceeding.”

The decision below correctly held that “a court

cannot set aside a voluntary dismissal without

prejudice” under Rule 60(b) “because it is not a final

judgment, order, or proceeding.” Pet.App.2. That

straightforward conclusion follows from the text and

history of Rules 41 and 60. Petitioner’s contrary

position would thwart the overarching aims of the

Federal Rules and the important policies served by

statutes of limitations.

A. A Rule 41(a)(1) Voluntary Dismissal

Leaves the Parties as if No Action Has

Been Brought.

Prior to the adoption of the Federal Rules of Civil

Procedure in 1938, the “general rule” had become

“settled for the federal tribunals that a plaintiff

possesse[d] the unqualified right” to voluntarily

“dismiss his complaint at law or his bill in equity.”

Jones v. SEC, 298 U.S. 1, 19 (1936). That right to

dismiss shortly after filing was “absolute,” and it did

“not depend on the reasons which the plaintiff

offer[ed] for his action.” Ex parte Skinner & Eddy

Corp., 265 U.S. 86, 93 (1924). The plaintiff could

simply “take a nonsuit in order to file a new action

5

after further preparation.” Cone v. W. Va. Pulp &

Paper Co., 330 U.S. 212, 217 (1947).

Historically, not all nonsuits were treated equally.

A “nonsuit at the early common law where the plaintiff

was inadvertently absent” from court “when

demanded was called an involuntary nonsuit.” Neal

C. Head, The History and Development of Nonsuit, 27

W. Va. L.Q. 20, 23 (1920). These dismissals were

entered by the court without the plaintiff ’s consent.

See id. A nonsuit could also occur “when the judge

expressed an opinion” that he would eventually rule

against the plaintiff via directed verdict. Id. When a

plaintiff submitted to that type of nonsuit “on the

advice of the judge, the cases [were] in conflict as to

his further rights.” Id. Some cases allowed him to “set

aside the nonsuit,” while others did not. Id.

A true voluntary nonsuit was different. “When the

plaintiff took a nonsuit of his own motion he was out

of court,” and he “could not move to set aside the

nonsuit.” Id. (emphasis added). The matter became a

nullity. The plaintiff could of course file a new action,

for “[u]nless a final judgment or decree is rendered in

a suit,” it is “never regarded as a bar to a subsequent

action.” City of Aurora v. West, 74 U.S. (7 Wall.) 82, 93

(1868). But, as to the original action, it was “not

conclusive” of anything. Id. The “voluntary dismissal

of [the] suit” thus “le[ft] the situation as if the suit had

never been filed.” Md. Cas. Co. v. Latham, 41 F.2d

312, 313 (5th Cir. 1930).

In the early twentieth century, plaintiffs frequently

exploited the lax common-law deadlines for invoking

this procedural mechanism. Voluntary dismissal

without prejudice was typically permitted all the way

6

up “until the entry of the verdict.” Cooter & Gell v.

Martmarx Corp., 496 U.S. 384, 397 (1990). As a result,

plaintiffs could and “would put defendants to the

expense of a lengthy trial, only to dismiss when an

adverse judgment seemed imminent, with the obvious

purpose of trying their chances again with a different

judge or jury.” Note, Absolute Dismissal Under

Federal Rule 41(a): The Disappearing Right of

Voluntary Nonsuit, 63 Yale L.J. 738, 738 (1954). “And

the process might be repeated time after time.”

McCann v. Bentley Stores Corp., 34 F. Supp. 234, 234

(W.D. Mo. 1940).

The Federal Rules responded by striking a balance

in Rule 41. On one hand, Rule 41(a)(1) “allow[s] a

plaintiff to dismiss an action without the permission

of the adverse party or the court only during the brief

period before the defendant ha[s] made a significant

commitment of time and money”—that is, by the time

the defendant files its answer or motion for summary

judgment. Cooter, 496 U.S. at 397; see Fed. R. Civ. P.

41(a)(1)(A)(i). Further, under Rule 41’s two-dismissal

rule, “a notice of dismissal operates as an adjudication

on the merits” and thereby bars future actions if “the

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

Fed. R. Civ. P. 41(a)(1)(B). Hence, a plaintiff can

voluntarily dismiss without prejudice only once.

But, short of that, “Rule 41(a)(1) preserves th[e]

unqualified right of the plaintiff to a dismissal without

prejudice.” Cone, 330 U.S. at 217. And the filing of a

notice of voluntary dismissal by the plaintiff operates

automatically, “Without a Court Order.” Fed. R. Civ.

P. 41(a)(1)(A). In these ways, Rule 41(a) is designed

7

“to preserve a plaintiff ’s right to dismiss an action

unilaterally, but to limit that right to an early stage of

the litigation.” 8 James Wm. Moore et al., Moore’s

Federal Practice § 41.33[1] (3d ed. 2024).

Where a plaintiff timely exercises that right, as

here, Rule 41(a)(1) operates like a voluntary nonsuit

at common law. Indeed, it continues to be “hornbook

law that ‘a voluntary dismissal without prejudice

under Rule 41(a) leaves the situation as if the action

never had been filed.’”

Erie Ins. Exch. ex rel.

Stephenson v. Erie Indem. Co., 68 F.4th 815, 821 (3d

Cir. 2023) (citation omitted); see 9 Charles A. Wright

& Arthur R. Miller, Federal Practice & Procedure

§ 2367 (4th ed. 2024) (collecting cases). The “case is a

nullity.” Williams v. Clarke, 82 F.3d 270, 273 (8th Cir.

1996). And there is nothing “final” about the notice of

dismissal because “it is possible that the claim

dismissed without prejudice will be re-filed.” State

Treasurer of Mich. v. Barry, 168 F.3d 8, 13 (11th Cir.

1999); see also Semtek Int’l Inc. v. Lockheed Martin

Corp., 531 U.S. 497, 505-06 (2001) (citing Black’s Law

Dictionary 482 (7th ed. 1999)). There is accordingly no

basis for a plaintiff to “move to set aside the nonsuit.”

Head, supra, at 23. His recourse is to file a new

lawsuit within the applicable limitations period.

B. A Rule 41(a)(1) Voluntary Dismissal Is Not

a “Final” “Judgment” or “Order.”

Rule 60(b) does nothing to alter that historical

understanding. It authorizes a court to “relieve a

party or its legal representative” only “from a final

judgment, order, or proceeding.” Fed. R. Civ. P. 60(b).

A notice of voluntary dismissal without prejudice

under Rule 41(a)(1) does not fit the bill.

8

Start with the term “order.” Plainly, an “order”

presupposes a relationship whereby one party has the

authority to direct another. See Order, Webster’s New

Collegiate Dictionary 591 (6th ed. 1949) (“A rule or

regulation made by competent authority”). Thus, in

legal parlance, an order is “[a] written direction or

comment by . . . a court or judge.” Order, Black’s Law

Dictionary (12th ed. 2024) (emphasis added). And that

understanding traces back to before the adoption of

the Federal Rules of Civil Procedure. See BP P.L.C. v.

Mayor & City Council of Balt., 593 U.S. 230, 237 n.1

(2021) (collecting historical definitions); Order, Black’s

Law Dictionary 1298 (3d ed. 1933) (“Every direction of

a court or judge made or entered in writing, and not

included in a judgment, is denominated an ‘order.’”

(emphasis added)).

The requirement that a court or judge issue an

order is therefore essential. But that is not what

happens with a Rule 41(a)(1) dismissal. On the

contrary, Rule 41(a)(1) explicitly states that a notice of

dismissal is effectuated “Without a Court Order.” The

plaintiff files his notice and, in turn, “[t]he dismissal

is effective on filing and no court order is required.”

Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.

1997). Because the plaintiff ’s filing “automatically

terminates the action” without judicial intervention

and “leaves the parties as though no action had been

brought,” it cannot qualify as an “order.” Id.

A notice of dismissal likewise does not qualify as a

“judgment.” As ordinarily understood, a judgment is

“[a] court or other tribunal’s final determination of the

rights and obligations of the parties in a case,” or “the

act or action of making such a determination.”

9

Judgment, Black’s Law Dictionary (12th ed. 2024);

accord Brownback v. King, 592 U.S. 209, 220 (2021)

(Sotomayor, J., concurring).

The Federal Rules

similarly define a judgment to “include[] a decree and

any order”—both of which are judicial actions—“from

which an appeal lies.” Fed. R. Civ. P. 54(a). And

authorities contemporaneous with the Federal Rules’

adoption spoke in the same voice: They described a

judgment as “[t]he official and authentic decision of a

court of justice upon the respective rights and claims

of the parties to an action or suit therein litigated and

submitted to its determination.” Judgment, Black’s

Law Dictionary (3d ed. 1933) (emphasis added); see

also G. Amsinck & Co. v. Springfield Grocer Co., 7 F.2d

855, 859 (8th Cir. 1925) (“[T]he decision of a court

constitutes its judgment[.]”). Like an order, then, a

judgment in this context presumes some action by the

court to reach a determination in the case, not

unilateral conduct by a party.

Rule 60(b)’s use of the modifier “final” confirms this

understanding. The word “final” characterizes a

judgment “not requiring any further judicial action by

the court that rendered judgment to determine the

matter litigated.” Final, Black’s Law Dictionary (12th

ed. 2024); see also Final, Black’s Law Dictionary 779

(3d ed. 1933) (“Definitive; terminating; completed;

conclusive; last.”). In other words, the judgment must

“final[ly] determin[e]” the “rights of the parties in an

action or proceeding.”

Judgment, Black’s Law

Dictionary 1024 (3d ed. 1933). A notice of voluntary

dismissal without prejudice, as already explained,

does not do that. It instead leaves the plaintiff free to

file the same cause the next day in either the same or

a different court.

10

In addition, courts have long interpreted “final” for

purposes of Rule 60(b) consistent with the meaning of

“final” for appellate jurisdiction purposes in 28 U.S.C.

§ 1291. See, e.g., Nat’l Wildlife Fed’n v. Nat’l Marine

Fisheries Serv., 886 F.3d 803, 816 (9th Cir. 2018);

Kapco Mfg. Co. v. C & O Enters., Inc., 773 F.2d 151,

154 (7th Cir. 1985); see also Torres v. Chater, 125 F.3d

166, 168 (3d Cir. 1997) (“There is an interdependence

between the ‘finality’ required for Rule 60(b) and

section 1291.”).

There is simply no reason to construe the same

word differently in those two provisions. And the law

is well-settled that the Courts of Appeals lack

jurisdiction to review a voluntary dismissal without

prejudice. After all, a decision “is not final, ordinarily,

unless it ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.”

Cunningham v. Hamilton County, 527 U.S. 198, 204

(1999) (quotation marks omitted); accord Catlin v.

United States, 324 U.S. 229, 233 (1945). A voluntary

dismissal without prejudice “does not constitute an

appealable final judgment because the plaintiff could

re-file the case against the dismissed party.” Gaddis

v. DeMattei, 30 F.4th 625, 629-30 (7th Cir. 2022); see

Galaza v. Wolf, 954 F.3d 1267, 1270 (9th Cir. 2020)

(“[A] voluntary dismissal without prejudice is

ordinarily not a final judgment from which the

plaintiff may appeal.” (quotation marks omitted));

Blue v. D.C. Pub. Schs., 764 F.3d 11, 17 (D.C. Cir. 2014)

(collecting cases for the proposition that “[e]very

circuit” “[a]ppears to acknowledge a presumption

against” treating voluntary dismissals without

prejudice being final for appellate review).

11

At bottom, the plain text of Rule 60(b) shows that

a notice of voluntary dismissal without prejudice is

neither a “judgment” nor an “order.” Nor is it “final.”

A plaintiff thus cannot move to set it aside under Rule

60(b).

C. A Rule 41(a)(1) Voluntary Dismissal Is Not

a “Final” “Proceeding.”

That leaves Petitioner to argue that a notice of

dismissal qualifies as a “final” “proceeding.”

Pet.Br.16-25. But that effort similarly falls flat.

At the time of Rule 60(b)’s promulgation, the word

“proceeding” had a variety of meanings. It was

sometimes “used synonymously with ‘action’ or ‘suit.’”

Proceeding, Black’s Law Dictionary 1430 (3d ed.

1933). In that sense, the term “describe[d] the entire

course of an action at law or suit in equity from the

issuance of the writ or filing of the bill until the entry

of a final judgment.” Id.

Yet the word “proceeding” also referred “[i]n a more

particular sense” to an application “for aid in the

enforcement of rights, for relief, for redress of injuries,

for damages, or for any remedial object.” Id. at 1431.

Put another way: A “proceeding” denoted “[s]ome act,

or acts, done in furtherance of the enforcement of an

existing right.” Coca-Cola Co. v. City of Atlanta, 110

S.E. 730, 733 (Ga. 1922). And that included the

issuance of “a summary remedy prescribed by

statute.” Id.; see also El Reno Wholesale Grocery Co.

v. Taylor, 209 P. 749, 753 (Okla. 1922) (collecting cases

describing the “distinction between ‘actions’ and

‘special proceedings’”); Ruch v. State, 146 N.E. 67, 71

(Ohio 1924) (“‘Proceeding’ is a term of much broader

signification than either suit or action. It has been

12

broadly defined as any act done by the authority or

direction of the court.”).

Regardless, the word

“proceeding” was commonly understood to be

“applicable, in a legal sense, only to judicial acts before

some judicial tribunal.” Proceeding, Black’s Law

Dictionary 1431 (3d ed. 1933) (emphasis added). So,

too, in Rule 60(b).

Moreover, “[t]he addition of the qualifying word

‘final’” in 1946 “emphasizes the character of the

judgments, orders or proceedings from which Rule

60(b) affords relief.” Fed. R. Civ. P. 60(b) advisory

committee’s note to 1946 amendment. Not just any

“proceeding” will qualify. It must be a “final” one—and

as already explained, a notice of voluntary dismissal

without prejudice is anything but “final.” By design,

it leaves a plaintiff free “to commence another action

for the same cause against the same defendants.”

Wilson, 111 F.3d at 692. And because such a filing

“effectively erases the dismissed action” to “permit[]

the initiation of a second action,” it “is neither final nor

appealable.” Wright & Miller, supra, § 2367. It is not

a “final proceeding.”

This interpretation best comports with Rule 60(b)’s

design. A “final” “judgment” or “order” is issued by the

court in a typical lawsuit, while a “final” “proceeding”

is the result of some other court action. The drafters

thus employed the word “proceeding” as a catchall to

address other judicial acts not covered by the first two

terms. “And of course, because Rule 60(b) speaks to

relief, the proceeding must have ended in a way that

burdened the party invoking the rule.” Pet.App.12

(emphasis added). That is not the case for a voluntary

13

dismissal without prejudice. It neither burdens the

filing party nor results from any “final” judicial act.

This understanding of a “final proceeding” is

further buttressed by the principle of “noscitur a

sociis, the well-worn Latin phrase that tells us that

statutory words are often known by the company they

keep.” Lagos v. United States, 584 U.S. 577, 582

(2018).

Here, that canon counsels in favor of

restricting the word “proceeding” to concepts similar

or related to its linguistic neighbors—“judgment” and

“order.”

The decision below respects that

“commonsense” interpretive principle by recognizing

that a “proceeding” involves some sort of judicial

action, United States v. Williams, 553 U.S. 285, 294

(2008), just as when a court issues an order or enters

a judgment, see supra Section I.B.

Rule 60’s title points in the same direction. See

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 221 (2012) (noting that a

title is a “permissible indicator[] of meaning”). It

speaks only of “Relief from a Judgment or Order,”

omitting reference to relief from a “proceeding.” That

title supplies yet another clue that Rule 60’s drafters

intended the term “final proceeding” to be construed

in a way that is “closely associated” with a “final

judgment” or “final order.” Yates v. United States, 574

U.S. 528, 540 (2015). As detailed above, the common

thread between those three terms is the presence of a

“judicial determination.” Pet.App.11.

A notice of voluntary dismissal without prejudice

therefore does not qualify as a “final proceeding”

either.

14

D. Adopting Petitioner’s Contrary Position

Would Undermine the Basic Policies of the

Federal Rules and Statutes of Limitations.

Accepting Petitioner’s contrary reading would not

only be inconsistent with the text and history of the

Federal Rules; it would also encourage litigation

gamesmanship that is “inconsistent with the

overriding interest in the ‘just, speedy, and

inexpensive determination’ of litigation in our courts.”

Societe Nationale Industrielle Aerospatiale v. U.S.

Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522, 543

(1987) (quoting Fed. R. Civ. P. 1). Lawsuits that left

the federal courts by the plaintiff ’s own volition could

be strategically resurrected years later—after the

statute of limitations has expired.

That would undermine “the basic policies of all

limitations provisions: repose, elimination of stale

claims, and certainty about a plaintiff ’s opportunity

for recovery and a defendant’s potential liabilities.”

Rotella v. Wood, 528 U.S. 549, 555 (2000) (collecting

cases). As described above, a voluntary dismissal

without prejudice nullifies the action and returns the

parties to the status quo prior to the action’s filing. See

supra Section I.A. Thus, it allows for future litigation

of the voluntarily dismissed claim only if refiled

“within the applicable limitations period.” Semtek,

531 U.S. at 506 (quoting Black’s Law Dictionary for

the definition of “dismissal without prejudice”). If a

new case is not filed by that point, the limitations

period expires. Defendants should be able to rely on

that lapse without the ever-looming threat of a Rule

60(b) motion that is “often distant in time and

scope.” Banister v. Davis, 590 U.S. 504, 520 (2020).

15

Petitioner’s tortured reading of the Federal Rules

flips these policies on their head. “Rule 41(a)(1) was

not designed to give a plaintiff any benefit other than

the right to take one . . . dismissal without prejudice.”

Cooter, 496 U.S. at 397. Nor should it. Rule 41(a)(1)

is “aimed at curbing abuses of the judicial system,” id.

at 398, and promoting “certainty and efficiency,”

Wellfount, Corp. v. Hennis Care Centre of Bolivar, Inc.,

951 F.3d 769, 774 (6th Cir. 2020). Petitioner’s

approach, by contrast, encourages the type of

unpredictable exploitation that existed prior to the

adoption of the Federal Rules.

Consider, for example, a plaintiff who brings a

putative class action against a corporation for millions

of dollars in damages. The plaintiff voluntarily

dismisses without prejudice under Rule 41(a)(1), and

then, years later, a new plaintiff ’s lawyer steps in to

represent the plaintiff after the statute of limitations

expires. Realizing in retrospect the potential damages

or settlement they could extract, they move to set

aside the voluntary dismissal. The decision below

correctly holds that avenue is unavailable through

Rule 60(b).

But under Petitioner’s perverse

interpretation of the Federal Rules, this plaintiff could

continue the litigation—which the defendant

justifiably believed was well and done—for years into

the future. And the plaintiff could do so despite

abandoning his claims and letting them expire. This

Court should reject a reading that would allow

plaintiffs to manipulate the rules to reopen a stale

action that they voluntarily chose to dismiss. That is

not consistent with the language or design of the

Federal Rules of Civil Procedure.

16

* * *

In sum, text, history, and context all make clear

that a notice of voluntary dismissal under Rule

41(a)(1) is not a “final judgment, order, or proceeding.”

Fed. R. Civ. P. 60(b). Accordingly, Petitioner cannot

deploy Rule 60(b) to set aside his notice of dismissal.

The judgment below should be affirmed.

II. Even If a Rule 41(a)(1) Dismissal Is a Final

Proceeding, This Court Should Make Clear

that Rule 60(b) Provides No Avenue for Relief

Here.

The judgment below should also be affirmed

because—even if Petitioner’s notice of dismissal were

a final proceeding—Rule 60(b) provides no “Grounds

for Relief.” Fed. R. Civ. P. 60(b).

Rule 60(b) allows for the reopening of a final

judgment, order, or proceeding only “under a limited

set of circumstances.” Gonzalez, 545 U.S. at 528. Rule

60(b)(1), for instance, provides for relief based on

“mistake, inadvertence, surprise, or excusable

neglect.” Fed. R. Civ. P. 60(b)(1). But a party must

bring a motion premised on these reasons “no more

than a year after the entry of the judgment or order or

the date of the proceeding.” Fed. R. Civ. P. 60(c)(1).

Rules 60(b)(2) through 60(b)(5) then specify other

grounds for vacatur, and Rule 60(b)(6) contains a

catchall for “any other reason that justifies relief.”

Fed. R. Civ. P. 60(b)(6). “This last option is available

only when Rules 60(b)(1) through (b)(5) are

inapplicable.” Kemp v. United States, 596 U.S. 528,

533 (2022).

Even then, truly “‘extraordinary

circumstances’ must justify reopening.” Id. (quoting

Liljeberg, 486 U.S. at 863 n.11); see also Gonzalez, 545

17

U.S. at 536; Ackermann v. United States, 340 U.S. 193,

199 (1950).

Here, Petitioner purported to file his motion under

Rule 60(b)(1) and Rule 60(b)(6). Pet.App.52. Neither

of those subsections apply.

Petitioner’s request under Rule 60(b)(1) is plainly

time barred. Petitioner filed his notice of voluntary

dismissal without prejudice in April 2020, “so that the

parties could pursue arbitration.” Pet.App.30. When

the arbitration did not go his way, he decided to return

to federal court, alleging that his voluntary dismissal

was a “mistake.” Pet.App.59. Yet, as Petitioner

concedes, he did not file his Rule 60(b) motion to set

aside the notice of voluntary dismissal until

September 2021. Pet.Br.5; see Pet.App.50-51. That

was more than a year after the notice was filed. As a

result, Rule 60(b)(1) is categorically unavailable for

relief from this alleged mistake. See Fed. R. Civ. P.

60(c)(1); Liljeberg, 486 U.S. at 863 n.11; Kemp, 596

U.S. at 533.

Petitioner fares no better under Rule 60(b)(6).

That subsection, again, “requires a showing of

‘extraordinary circumstances.’” Gonzalez, 545 U.S. at

536. There is nothing extraordinary here. Petitioner

merely wants a second bite at the apple after losing in

arbitration.

The District Court cited an “intervening change in

law” occasioned by this Court’s decision in Badgerow

v. Walters, 596 U.S. 1 (2022). Pet.App.60. But a

“change in the law” worked by this Court’s precedent

is “hardly extraordinary.” Gonzalez, 545 U.S. at 53637; see also Agostini v. Felton, 521 U.S. 203, 239

(1997). Nor did Badgerow even change the law in the

18

Tenth Circuit, where this case arose. As the District

Court acknowledged, “the Tenth Circuit had not

decided the issue.” Pet.App.60 n.4. And Petitioner

should have known of the possible consequences of his

action, given that multiple Courts of Appeals had

already resolved the issue in a way that would

preclude the re-filing of his action in federal court—

just as this Court later held. See Badgerow, 596 U.S.

at 7 n.1 (collecting cases on each side of the split).

At most, then, Petitioner’s allegedly extraordinary

circumstances are that he made a tactical “mistake,”

“excusabl[y] neglected” contrary circuit authority, or

was “surprise[d]” by how Badgerow came out. Fed. R.

Civ. P. 60(b)(1). All those claims, however, sound in

Rule 60(b)(1). That forecloses relief, as “a party may

‘not avail himself ’” of Rule 60(b)(6) where “his motion

is based on grounds specified in clause (1).” Liljeberg,

486 U.S. at 863 n.11 (quoting Klapprott v. United

States, 335 U.S. 601, 613 (1949)).

“Rather,

‘extraordinary circumstances’” not covered by any

other provision of Rule 60(b) “are required to bring the

motion within the ‘other reason’ language and to

prevent clause (6) from being used to circumvent the

1-year limitations period that applies to clause (1).”

Id.; see also Kemp, 596 U.S. at 533.

Moreover, this Court has long held that the

“‘extraordinary

circumstances’”

alleged

must

“suggest[] that the party is faultless in the delay.”

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

P’ship, 507 U.S. 380, 393 (1993) (quoting Liljeberg, 486

U.S. at 863 & n.1); see also Ackermann, 340 U.S. at

197-200. Relief is not available under Rule 60(b)(6) if

the movant “is partly to blame” for the situation.

19

Pioneer Inv. Servs., 507 U.S. at 393. He must instead

be “completely without fault for his or her

predicament” and “unable to have taken any steps

that would have resulted in preventing the judgment

[or proceeding] from which relief is sought.” 12 James

Wm. Moore et al., Moore’s Federal Practice

§ 60.48[3][b] (3d ed. 2024).

That principle is equally fatal to Petitioner’s

motion.

“By no stretch of imagination can

[Petitioner’s] voluntary, deliberate, free, untrammeled

choice” to unilaterally dismiss his case be considered

a proper basis for relief. Ackermann, 340 U.S. at 200.

Given that voluntary decision, Rule 60(b)(6) “has no

application.” Id. at 202.

20

CONCLUSION

The Court should affirm the judgment below.

Respectfully submitted,

CARLA G. GRAFF

BRIAN A. KULP

ANTHONY R. JADICK

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

MICAELA SCOTTI

DECHERT LLP

3 Bryant Park

1095 Avenue of the

Americas

New York, NY 10036

STEVEN A. ENGEL

MICHAEL H. MCGINLEY

Counsel of Record

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3378

michael.mcginley@dechert.com

JENNIFER B. DICKEY

KEVIN R. PALMER

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

Counsel for Amicus Curiae

December 26, 2024