Here, Doe plaintiffs have sued in state court asserting only state law claims, and there is no “incompatibility between applying California claim-preclusion law with federal interests.” (Gray, supra, 95 Cal.App.5th at p. 962.) In these circumstances, California’s claim preclusion law governs, allowing plaintiffs who voluntarily dismiss an action without prejudice to refile, not federal law. The majority concludes that under Federal Rules of Civil Procedure, rule 41 (28 U.S.C.), a second voluntary dismissal in federal court of a case involving federal question jurisdiction has claim preclusive effect in a third case filed in state court, relying on Taylor v. Sturgell (2008) 553 U.S. 880, 891 and Louie v. BFS Retail & Commercial Operations, LLC (2009) 178 Cal.App.4th 1544, 1553. But Taylor and Louie did not involve Federal Rules of Civil Procedure, rule 41 (28 U.S.C.), particularly a voluntary dismissal under Federal Rules of Civil Procedure, rule 41(a) (28 U.S.C.) and did not consider the effect of such a dismissal on a state court action asserting only state claims. The majority also relies on Melamed v. Blue Cross (9th Cir. 2014) 557 Fed. Appx. 659 and Jian Ying Lin v. Shanghai City Corp. (S.D.N.Y. 2018) 329 F.R.D. 36. But those cases instruct that where a federal court is exercising federal question jurisdiction, the two-dismissal rule of Federal Rules of Civil Procedure, rule 41 (28 U.S.C.) bars a third action in federal court. They do not instruct what happens when the third action is brought in state court asserting only state law claims.
“The United States Supreme Court has never addressed the issue presented here[,]” specifically what law governs the claim preclusive effect of a federal court disposition of a state law claim under Federal Rules of Civil Procedure, rule 41(a) (28 U.S.C.) in a case in which federal court jurisdiction over the state law claim was based on supplemental jurisdiction. (Herington, supra, 500 P.3d at p. 1176.) For these reasons,
I would reverse the trial court’s judgment and allow the Doe plaintiffs’ claims to proceed in state court.
