Rule 41(b) Dismissal for Failure to Prosecute is an Adjudication on the Merits

Kennedy, etc., et al. v. Jessie, [Ms. SC-2022-0982, Oct. 27, 2023] __So. 3d __ (Ala. 2023). The Court (Stewart, J.; Parker, C.J., and Wise and Cook, JJ., concur; Sellers J., concurs in the result) affirms the Jefferson Circuit Court’s determination that the dismissal with prejudice of Markisha Iyana Kennedy’s (“Kennedy”) prior action against Jasmine Lashay Jessie (“Jessie”) operated as an adjudication on the merits such that the doctrine of res judicata bars Kennedy’s subsequent action. The trial court dismissed Kennedy’s first action for want of prosecution under Rule 41(b), Ala. R. Civ. P. The Court explains that a dismissal for failure to prosecute, unless otherwise specified, generally “operates as an adjudication on the merits.” Ms. *7.

The Court reiterates that “the failure to prosecute an action or to comply with an order are grounds for dismissal that typically do not relate to the failure of a “‘precondition requisite to the [c]ourt’s going forward to determine the merits of [the plaintiff’s] substantive claim.’” Ms. **14-15, quoting Costello v. United States, 365 U.S. 265, 285 (1961). The Court also notes that “because Kennedy had actually served Jessie, the trial court could have gone forward to consider the substantive merits of Kennedy’s claim in the first action.” Ms. *14. Accordingly, the Court rejects Kennedy’s argument that the dismissal of the first action was based on “lack of jurisdiction” under Rule 41(b) and affirms the trial court’s determination that Kennedy’s second action is barred by res judicata resulting from dismissal of the first action.

The Court also “emphasize(s) that our decision today should not be understood as approving of the trial court's dismissal of the first action with prejudice. Kennedy, however, did not appeal from the dismissal order in the first action….” Ms. *17.

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