City of Raleigh v. College Campus Apartments, Inc.

*286Judge GREENE

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…