(dissenting).
I am not disposed to go along with my associates in this case. In my opinion the judgment below should be reversed.
*309Preliminarily, as the majority opinion has stated, appellant, on the 4th day of April, 1958, filed in the district court its complaint seeking damages for claimed breaches of contract. On April 28 following appellees served and filed an answer containing no counterclaim and asking no affirmative relief. On May 19 thereafter appellant, through its Oregon counsel, orally moved for a dismissal of the action without prejudice under Rule 41(a) (2), Federal Rules of Civil Procedure, which motion was denied by minute entry on the same day. In denying the motion, the court said: “The right to be sued in your own community is a valuable right. The motion is denied." Clearly, such is an advantage and a convenience, but appellees have no legal right to be sued in Oregon. The venue statute which is applicable in diversity actions, 28 U.S.C.A. § 1391(a), permits actions to be brought either in the district court where all defendants or all plaintiffs reside.
On May 23, appellant filed a motion for reconsideration and renewal of the earlier motion for voluntary dismissal without prejudice, pursuant to statute. The motion was supported by affidavit of a Mr. Jerome Williams, primary attorney for plaintiff residing in the state of Washington, giving an elaborate statement of his reasons for the motion. A hearing was held on this motion on June 16, 1958, and in the course of the proceedings Mr. Williams among other things stated: “And, as I said in the affidavit, I am personally prepared to meet any damages which your Honor feels are warranted in the situation.” The motion was thereafter on the same day denied, without opinion. On August 4, 1958, the district court dismissed the action with prejudice.
It is my opinion that the trial court was obliged to allow appellant to dismiss without prejudice pursuant to the Rule and that in dismissing with prejudice the court abused its discretion under the particular facts of this case.
Rule 41(a) (2) provides that an action shall not be dismissed at plaintiff’s instance after answer has been filed except under order of the court and upon such terms and conditions as the court deems proper. Plaintiff can not dismiss as a matter of right after service of answer; and in ruling on a motion to dismiss an action without prejudice after service of answer the court is obliged to exercise a sound judicial discretion. Consult Home Owners’ Loan Corp. v. Huffman, 8 Cir., 134 F.2d 314, 316. But, in exercising its discretion, the court is obliged to recognize the rule which has long been followed in both law and equity, and which has traditionally allowed voluntary dismissals without prejudice after payment of defendant’s costs in a situation where defendant will not suffer any legal prejudice beyond incidental annoyance of a second litigation on the same subject. Home Owners’ Loan Corp. v. Huffman, supra. This rule, governing the exercise of a trial court’s judicial discretion, was reiterated by the Supreme Court in the case of Cone v. West Virginia Pulp & Paper Co., 1947, 330 U.S. 212, 217, 67 S.Ct. 752, 755, 91 L.Ed. 849. There the Court observed: “Take the case where a trial court is about to direct a verdict because of failure of proof in a certain aspect of the case. At that time a litigant might know or have reason to believe that he could fill the crucial gap in the evidence. Traditionally, a plaintiff in such a dilemma has had an unqualified right, upon payments of costs, to take a nonsuit in order to file a new action after further preparation, unless the defendant would suffer some plain legal prejudice other than the mere prospect of a second lawsuit.”
Barron & Holtzoff1 in its discussion of the subject cites the Cone case and observes: “In exercising its discretion the court follows the traditional principle that dismissal should be allowed unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second law suit.”
*310The types of cases in which defendants would suffer “plain legal prejudice,” thereby justifying refusal of a dismissal without prejudice, are set out in Moore’s Federal Practice (2d Ed.), Vol. 5, at p. 1021, as: “Where defendant had filed its answer and had gone to great expense in preparation for trial; where answer showed that plaintiff’s claim was barred by the statute of limitations; where the court had denied on undisputed facts an application for a preliminary injunction; where the action had long been pending and plaintiff had not been diligent; where plaintiff had no right to prosecute the action in her own name; where no sufficient reason was given for dismissal; where motion was made after defendant had moved for summary judgment and in order to bring another action in another state having a longer period of limitation; where plaintiff had amended complaint three times, had had a pretrial conference and had been served with answers to interrogatories; where the motion to dismiss was made after the close of plaintiff’s case; where defendant was entitled to a directed verdict at the end of plaintiff’s case; where a verdict for plaintiff was set aside and judgment rendered for defendant; where the action had been remanded after reversal upon appeal; and where ‘to do otherwise would be an abuse of justice.’ ”
What burdens, one may ask, have ap-pellees here borne which could not be adequately compensated by the imposition of terms and conditions? Here ap-pellees had filed no counter claim and were asking no affirmative relief. Appel-lees had filed their answer only 22 days prior to appellant’s motion for dismissal without prejudice pursuant to the Rules of Civil Procedure. No depositions or interrogatories had been taken or served. No witnesses had been transported to Oregon from distant places for trial. Indeed, the record shows that appellees had borne only the expense of answering, which burden could have been relieved by court order conditioning dismissal without prejudice.
. Barron & Holtzoff, Federal Practice and Procedure, Vol. 2, § 912, 1958 Pocket Parts.