dissenting.
The majority construes Rule 41(a) to make the second dismissal without prejudice a final adjudication upon the merits, even though the defendants are not the same. I disagree. I believe the “two dismissal” rule applies only when the defendants “are the same or substantially the same or in privity in both actions.” 5 Moore’s Federal Practice Sec. 41.04 at 41-44 (2d ed. 1988); see also 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2368 at 190 (1971) (“a general rule that the ‘two dismissal’ rule applies only though the suits were not against the same defendants seems unsound”). Accord Falkenstein v. Braufman, 251 Minn. 444, 88 N.W. 2d 884 (1958); cf. State, County of St. Louis v. Marchand, 401 N.W. 2d 449 (1987) (two dismissals of action against same defendant alleging his paternity of same child did not bar third action against defendant, as party plaintiffs were different).
As the plaintiff’s claim was against two different defendants, it was not the “same claim” as that term is used in Rule 41(a). To hold otherwise would bar a plaintiff’s action against a defendant for breach of contract simply because plaintiff had previously entered “two dismissals” of a like claim against another defendant for breach of the same contract.
Additionally, the fact that Jeffrey Pinto was the only stockholder of College Campus Apartments, Inc., and its registered agent, is not, in my opinion, sufficient evidence that the parties are “substantially the same or in privity.” Accordingly, I would hold the plaintiff’s second voluntary dismissal did not operate as an adjudication on the merits and that the trial court erred in entering summary judgment for the defendant.