Federal Two-Dismissal Rule Does Not Apply in State Court

Monday, July 6, 2026

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California Supreme Court:

Federal Two-Dismissal Rule Does Not Apply in State Court

Opinion Says Plaintiffs Are Not Precluded From Filing Complaint in California Due to Having Earlier Filed, Then Voluntarily Dismissed, Similar Cases in U.S., Superior Courts

By Kimber Cooley, associate editor

The California Supreme Court held Thursday that a group of plaintiffs was not precluded from filing a complaint in California against a school district and a former counselor over purported instances of sexual abuse based on having earlier filed and then voluntarily dismissed nearly identical actions in state and federal courts.

At issue is Federal Rule of Civil Procedure 41, which provides that a plaintiff “may dismiss an action without a court order” by stipulation or by filing a “notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Subdivision(a)(1)(B) specifies:

“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.”

Justice Kelli Evans wrote the opinion for the unanimous court, rejecting the view that a judgment of dismissal entered as a result of the so-called “two-dismissal” rule is entitled to claim preclusive effect in California courts. She said:

“Rule 41(a)(1)(B) is a rule of federal procedure that, when triggered, bars the plaintiff from filing the same claims in federal court. It is not a broader rule of claim preclusion and thus does not bar a subsequent action in state court.”

Former Students

The question arose after seven former students of Kynoch Elementary School, proceeding as Doe plaintiffs, filed complaints in Yuba Superior Court against a former counselor, William Babcock, and the Marysville Joint Unified School District in 2020. The pleadings each alleged identical causes of action, including negligence, sexual battery, and failure to perform a mandatory duty.

That November, after the plaintiffs’ requests to voluntarily dismiss the matters were granted in each case, they filed a joint complaint against the defendants in the U.S. District Court for the Eastern District of California, asserting the same causes of action under California law and adding claims under Title IX of the Education Amendments of 1972 and Title VIII of the No Child Left Behind Act of 2001.

In January 2021, the school district moved to dismiss the federal action under Federal Rule of Civil Procedure 12(b)(6), arguing that it is an “arm of the state” entitled to sovereign immunity. The following month, the plaintiffs filed a notice of voluntary dismissal, indicating that the action would be dismissed “without prejudice.”

On March 11, 2021, the plaintiffs tried again, filing a complaint against Babcock and the district in Ventura Superior Court, asserting the state-law negligence and other causes of action. The case was subsequently transferred to Yuba Superior Court by stipulation of the parties.

Demurrer Sustained

Yuba Superior Court Judge Debra Givens sustained the school district’s demurrer to the pleading in November 2021, ruling that claim preclusion applies based on the language in Rule 41(a)(1)(B) indicating that the second notice of dismissal “operates as an adjudication on the merits.”

A divided Third District Court of Appeal affirmed in December 2023, reasoning that federal rules of res judicata applied because jurisdiction was based on the asserted violations of U.S. statutes.

Saying that “stripping out the federal claims and refiling the state claims does not change the fact that a claim-preclusive judgment has already been entered concerning the Doe plaintiffs’ alleged harm,” the court declared: “Res judicata bars the Doe plaintiffs’ claims in this action because the federal action was based on federal question jurisdiction, and federal law, which we are bound to follow in this context, deems the second dismissal claim preclusive.”

Reversing the judgment, Evans wrote:

“We hold that a second voluntary dismissal subject to the two-dismissal rule of rule 41(a)(1)(B) does not preclude a subsequent suit on the same state law claims in state court.”

Unsound Understanding

Citing the 2001 U.S. Supreme Court case of Semtek Int’l Inc. v. Lockheed Martin Corporation, the justice remarked:

“As stated above, the majority below held that rule 41(a)(1)(B) bars Does from bringing the instant action. That understanding of rule 41(a)(1)(B) is unsound. We begin our analysis where the Court of Appeal halted its own, i.e., what is the effect of rule 41(a)(1)(B)? On that issue, we agree with Does that Semtek succinctly resolves this case.”

In the Semtek decision, the court considered the claim-preclusive effect of a federal judgment in a diversity action that dismissed state-law causes of action under subdivision (b) of Rule 41, which governs involuntary dismissals.

Rejecting the view that all judgments that are denominated as “on the merits” are entitled to claim-preclusive effect, the U.S. high court said that the phrase means that a case is dismissed with prejudice, “which has the effect of barring the plaintiff from refiling the claim” in federal court, but that the designation “is undoubtedly” necessary but not sufficient to preclude state-court filings.

Saying that the decision established that “the preclusive effect of the federal judgment was determined, not by operation of rule 41(b), but by applying ordinary rules of claim preclusion,” Evans opined:

“The holding and reasoning in Semtek conclusively answers the threshold question posed in this case: Is rule 41(a)(1)(B) a rule of claim preclusion? It is not.’…The high court’s reasoning in reaching this conclusion as to rule 41(b) applies as well to rule 41(a)(1)(B).”

Complex Question

Remarking that “it would be peculiar indeed to announce a federally prescribed rule on the complex question of claim preclusion within rule 41(a), particularly since a dismissal under this rule may be entered without a court order,” she continued:

“Although California law allows Does to sue on their state law claims after twice dismissing similar suits elsewhere without prejudice, allowing the extinguishment of that right through rule 41(a) arguably would exceed the jurisdictional limitation of the Rules Enabling Act.”

Highlighting federalism concerns, she added:

“The two-dismissal rule implicates federal interests insofar as it limits a plaintiff’s ability to repeatedly bring and dismiss the same claims in federal court to the detriment of the defendant and the court’s docket….But there is ‘no conceivable federal interest’…in the application of a federal procedural rule to state law claims raised in state courts.”

Addressing the school district’s assertion that federal courts are to apply their own rules of res judicata in non-diversity cases, Evans said:

“Even if we were to assume that the federal dismissal has some preclusive effect under federal law, a question we need not decide here, we do not think it would be so broad as to preclude the refiling of state law claims in state court.”

Other Laws

Turning to whether other laws support the view that the federal dismissal is entitled to carry claim-preclusive weight in subsequently filed state-court actions, the jurist declared:

“Considering the nature of the voluntary dismissal under rule 41(a)(1)(A)(i) in this case, we conclude it was not claim-preclusive as a matter of res judicata.”

Commenting that “[b]oth the California and federal rules of claim preclusion point to this conclusion,” she wrote:

“Although the standards differ in certain respects, they both require a final judgment on the merits….In California, a voluntary dismissal without prejudice is not a judgment on the merits, and therefore, has no claim-preclusive effect upon a later suit….The same is true in the federal courts.”

Noting that “[t]he School District’s lack of authority to support its position became clear at oral argument” when it “suggested that, although such a dismissal ordinarily does not constitute an adjudication on the merits, ‘repeated’ dismissals transform into a final judgment,” Evans pointed out:

“No authority supports this rule,…which simply recasts the procedural bar of rule 41(a)(1)(B) as a rule of federal common law. Of course the federal courts are free to adopt such a rule, but they have not done so.”

The case is Doe v. Marysville Joint Unified School District, 2026 S.O.S. 1936.