dissenting:
I respectfully dissent. Under the circumstances of this case, I do not think the *1277district court abused its discretion in imposing all of the conditions to allowing Davis to dismiss her federal action without prejudice. In particular, I disagree with the majority’s conclusion that it was an abuse of discretion to impose the condition that Davis must limit her state law action to claims of negligent supervision after Stoutz (hence USX by imputation) became aware of Bryan’s alleged tortious conduct.
I accept the majority’s careful and complete statement of the general legal principles controlling the allowance of dismissals without prejudice under Fed.R.Civ.P. 41(a)(2). In particular, I agree with the recognition, op. 1274, that dismissal with-outprejudice may properly be conditioned upon a claimant’s limiting her prosecution of claims in other courts to those not already adversely determined or faced with imminent adverse determination in the federal action. See generally 5 Moore’s Federal Practice fl 41.05[1] (1986). That wise principle simply recognizes that it is unfair to a defendant to let a claimant select a forum in which to prosecute her claims, then be allowed to bail out scot-free to try the same claims in another forum after losing on the merits or seeing the adverse handwriting on the wall in the first chosen forum.
The majority finds that principle not applicable here, however, because in its view the claims sought to be precluded by the imposition of a condition had not been adversely determined (become the “law of the case”) in the federal action. With all deference, I simply disagree with that analysis.
Whatever the uncertainties resulting from the three-way division, our earlier panel decision clearly held, applying South Carolina law on the authority of our earlier decision in Rabon v. Guardsmark, Inc., 571 F.2d 1277 (4th Cir.1978), that an employer is not liable for the intentional torts of its employee not committed in furtherance of the employer’s business and that, on the facts here, this precluded Davis’ recovery for Bryan’s reprehensible conduct. See Davis v. United States Steel Corp., 779 F.2d 209, 211-12 (4th Cir.1985). The majority opinion here finds this holding limited to the period of time before Stoutz (hence USX) learned of Bryan’s tortious conduct.1
This, with all respect, misinterprets the legal significance of the earlier panel decision’s holding that Davis could proceed with a direct claim against USX for its “negligent supervision” of Bryan once USX knew (through Stoutz) of Bryan’s earlier conduct. That holding cannot properly be understood also to open up a parallel re-spondeat superior claim based directly upon Bryan’s conduct after that time. Re-spondeat superior liability does not depend upon whether an employer knows (either directly or by imputation) of an employee’s tortious conduct.2 If, as the earlier panel *1278decision plainly held, USX was not vicariously liable in respondeat superior for Bryan’s conduct, it was no more liable on that theory after than before the employer came to know of the conduct. Nothing in the earlier panel decision suggests anything to the contrary. That decision left open only the possibility that USX might be found directly, not vicariously, liable for its own negligent failure to supervise Bryan after knowledge of his earlier depredations were imputed to it through Stoutz. The district court was prepared faithfully to allow Davis to attempt proof under that theory, and ultimately did allow the effort that was then aborted by Davis’ concession of inability to make the required proof.
The district court, in my opinion, correctly assessed the situation at the time Davis sought dismissal without prejudice. At that point, Davis had, as a matter of the law of the case, lost as to any claim based upon a respondeat superior theory of USX’s vicarious liability for Bryan's tor-tious conduct. Over Judge Butzner’s dissent, this court had earlier held that Bryan’s intentional conduct, without regard to when it occurred, was not in furtherance of USX’s business. If that holding proceeded to incorporation in a final judgment in the district court, as it surely was then proceeding, it would be transformed from mere “law of the case” to res judicata. What Davis sought, therefore, to USX's considerable prejudice, was freedom from that inexorably approaching consequence. Dismissal without prejudice under Fed.R. Civ.P. 41(a)(1), of course, specifically avoids that consequence. The district court in my judgment was well within its discretion in refusing to grant this great indulgence to Davis at USX’s expense.
The district court’s action, which I would affirm, may seem to reach a harsh result, smacking somewhat unduly of “technicality.” But when the matter is put in perspective that simply is not a proper view of things.
This claimant, with a choice of state and federal forums to prosecute her state claims against USX, deliberately chose the federal forum, and sought there to prosecute her claims through to final judgment. This carried the inevitable risk of defeat on the merits, with full res judicata effect. It also deliberately invoked the federal forum as the chosen one to apply state law to the state common law claims, thereby risking defeat by a federal misunderstanding or misapplication of state law. As matters developed, the claimant, having lost on the merits on the state law claims in district court, decided for purely tactical reasons to abandon her federal Title VII claim. That was a perfectly viable claim, assuming, as seemed quite likely, that Davis could substantially prove her allegations about Bryan’s conduct. See Meritor Savings Bank, FSB v, Vinson, — U.S. —; 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Katz v. Dole, 709 F.2d 251 (4th Cir.1983). This tactical decision by Davis may be quite understandable from the standpoint of the remedies available under Title VII in relation to those available under the state law claims and in light of the desire to concentrate on reaching an expeditious decision on the latter. It nevertheless was a decision made by claimant, not by the federal court to which she had brought that probably winning federal claim. Its result was to leave only the state law claims before the federal courts. On appeal, the district court’s rejection of the state respondeat superior claim was affirmed by this court which nevertheless, though erroneously in my view, see 779 F.2d at 214-15 (Phillips, J., concurring and dissenting), found in the record a viable alternative claim of “negligent supervision” directly against USX. *1279So matters stood on remand when Davis asked in effect to be allowed to relitigate the failed respondeat superior claims belatedly in the state forum.
Under these circumstances, the district court quite properly concentrated mainly upon the unfairness threatened to USX by allowing unburdened discontinuance. At that point this was not a case in which, because matters had not proceeded to decision on the merits, nothing more was involved than honoring a preference for another court, “just as good,” as the one from which unburdened dismissal was sought. Cf. Young v. Southern Pacific Co., 25 F.2d 630, 632 (2d Cir.1928) (L. Hand, concurring). Much more prejudice was threatened for USX than the mere “prospect of a subsequent lawsuit.” Cf. McCants v. Ford Motor Co., 781 F.2d 855, 857 (11th Cir.1986). What was threatened, indeed what inevitably was to occur, was the loss of a favorable determination fairly obtained in a trial court and affirmed on appeal.
It may be thought that the end result— relegation of the state respondeat superior claim (albeit in temporally truncated form) to state court for unburdened resolution— is so just a result for reasons of comity that it should be compelled. Davis suggests, and the majority seems to accept the possibility, see op. p. 1273, that a recent South Carolina decision, Crittenden v. Thompson-Walker Co., 288 S.Ct. 112, 341 S.E.2d 385 (App.1986), may have drawn in question our earlier panel decision’s reliance upon Rabón as authority for South Carolina respondeat superior law in the circumstances of this case. Be that as it may, and to me Crittenden is easily distinguishable in its facts from both this case and Rqbon, it bears repeating that Davis deliberately chose the federal courts as arbiters of her state law respondeat superior claim, hence as chosen “finders” of state law on that issue.
I do not think that the district court in these circumstances was bound to treat the adverse federal determination as no more than a limited-risk test run by Davis. This is the result effectively compelled by the finding of an abuse of discretion here.
. The majority finds this limitation in the portion of Judge Murnaghan’s lead opinion quoted in its footnote 2, at op. 1274. With all respect, that passage can properly be read only as referring to the means by which USX, as of the date of Stoutz’ knowledge, could be charged with that same knowledge — i.e., by "imputation.” "Respondeat superior" is only used there as a synonym for, or a means of, "imputation of knowledge.” See 779 F.2d at 211 ("fact-finder [permitted] to establish under the doctrine of respondeat superior that the observations and inaction of ... Stoutz, should be imputed to the company’). Without regard to the precision of this usage, its intended meaning is plain in total context of the lead opinion. That opinion specifically relies upon Rabón as supplying the principle of South Carolina law which precluded any recovery against USX under respondeat superior principles for Bryan’s conduct. See id. at 211-12. Rabón had nothing in it suggesting that the intentional tort exception to vicarious liability depended upon the lack of knowledge of an employer. I so understood the lead opinion at the time, see id. at 214 (Phillips, J., concurring and dissenting); I still so understand it; and the district court was absolutely justified in so understanding it.
. Challenging the accuracy of this general assertion, the majority, op. 1274 n. 3, cites as countervailing authority Prosser, Law of Torts § 70 (1971) (at p. 463) and a Prosser-cited South Carolina case, Carroll v. Beard-Laney, Inc., 207 S.C. 339, 35 S.E.2d 425, 426 (1945). With deference, both deal only with the extent to which employer knowledge, hence foreseeability, may operate to restrict the "frolic or detour” spatial limitation on vicarious liability. Neither deals with the related but quite different matter of vicarious liability for intentional torts arguably wholly personal to the employee. As to that, the general principle remains that, even under the most liberal view, vicarious liability arises *1278only with respect to conduct that in part at least is "in furtherance of the employer’s business.” Restatement (Second) Agency, § 235. Foreseeability has been recognized as a factor in such cases only to the extent that the very nature of the job is likely to provoke unauthorized tor-tious conduct, to be “not unexpectable.” Id. § 245 comments a., c., f. (debt collection, repossession duties, etc.); cf. Prosser, Law of Torts § 70, pp. 464-67. We specifically recognized in Rabón and, by necessity, in this case, that South Carolina might impose liability in a suitable case under this principle. In both cases, however, we found the principle not applicable, as a matter of South Carolina law, to the facts of the cases; specifically, because in neither was the conduct in any way "in furtherance of the employer's business."