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Lake at Las Vegas Investors Group Inc. v. Pacific Malibu Development Corp.

filed: August 23, 1991.

LAKE AT LAS VEGAS INVESTORS GROUP, INC., PLAINTIFF-APPELLANT,
v.
PACIFIC MALIBU DEVELOPMENT CORP., ET AL., DEFENDANTS, TRANSCONTINENTAL CORP., TRANSNEVA CORP., AND TRANSNEVA LIMITED PARTNERSHIP, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the District of Nevada D.C. No. CV-S-87-768-RDF; Roger D. Foley, District Judge, Presiding. Original Opinion Reported at,.

Thomas Tang, Jerome Farris and Dorothy W. Nelson, Circuit Judges. Opinion by Judge Jerome Farris.

Author: Farris

Order

The opinion filed May 13, 1991, is amended as follows:

(1) At slip op. page 6066, first full paragraph, first sentence: substitute "Rule 41(a)(1) requires privity" for "privity is required"

(2) At slip op. page 6066, first full paragraph, second and third sentences: substitute "but find the argument for a strict privity requirement inapplicable here. We agree" for "but we reject the argument for a strict privity requirement. Nevertheless, we agree"

(3) At slip op. page 6066, last paragraph, first sentence: delete and substitute "The relationship between Transcontinental and the two Transneva defendants is sufficient to render them "substantially the same" for purposes of Rule 41(a)(1)."

(4) At slip op. page 6066, last paragraph, fourth sentence: substitute "two dismissals of the subsidiary's parent and claim Rule 41(a)(1) res judicata" for "rights of the subsidiary's parent for purposes of Rule 41(a)(1) res judicata"

With the foregoing amendments, the panel has voted to deny appellant's petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the amendments to the opinion and of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OVERVIEW

Lake at Las Vegas Investors Group, Inc. appeals the district court's dismissal of its action for interference with and breach of contract against Transcontinental Corporation, Transneva Corporation, and Transneva Limited Partnership. The dismissal was pursuant to the rule that two voluntary dismissals under Federal Rule of Civil Procedure 41(a) operate as an adjudication on the merits.

JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). This court has jurisdiction over the timely appeal pursuant to 28 U.S.C. § 1291.

ISSUES

(1) Whether the district court erred in granting Transcontinental's motion to dismiss pursuant to the two dismissal exception of Rule 41(a).

(a) Because Nev. Rev. Stat. § 80.210(1) rendered Investors's first ...


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