Dismissal with prejudice; Fed R Civ P 41(a)(2) & 41(a)(1)(A)(i); United States v 266 Tonawanda Trail (One Tract); Designation as a vexatious litigator; Due process; Clemons v DeWine (Unpub 6th Cir); Applicability of the Sarbanes-Oxley Act to plaintiff’s claim of “protected whistleblower status”; Whether an evidentiary hearing was required; Recusal

The court held that the district court did not abuse its discretion in dismissing plaintiff-Wasserman’s case “with prejudice, designating her as a vexatious litigator, and imposing prefiling restrictions on her.” In her purported capacity as an executor of an Ohio probate estate, plaintiff sued defendants referred to as the Beggs Defendants. After the district court struck her Second Amended Complaint for failure to comply with Rules 8 and 11, it gave her the opportunity to file a Third Amended Complaint. At the deadline for doing so, she instead filed a Notice of Voluntary Dismissal, citing Rule 41(a)(1)(A)(i), to dismiss the Beggs Defendants. Because they “had already served an answer in the action, the district court determined that Rule 41(a)(2) applied to the Notice, not Rule 41(a)(1)(A)(i).” In an order, it gave plaintiff three options on how to proceed. When it subsequently determined that she failed to comply with that order, it dismissed the action with prejudice. On appeal, the court concluded that the district court “correctly applied Rule 41(a)(2) to Wasserman’s Notice.” It also did not abuse “its discretion by making the dismissal with prejudice.” The court found that the “district court’s order satisfied the requirements outlined in One Tract. Since those requirements were satisfied, Wasserman’s failure to explain why a dismissal without prejudice would not have legally prejudiced the Beggs Defendants was a sufficient basis for [it] to dismiss the action with prejudice.” As to her due process challenge to the vexatious litigator designation, she did not cite any “authority requiring an evidentiary hearing” and the court found her argument unpersuasive. In a prior case, Clemons, it outlined “four circumstances that, if met, would cover the litigator’s due process concerns” – (1) notice, (2) creation of an adequate record for review, (3) the making of “substantive findings as to the frivolous or harassing nature of the litigant’s actions,” and (4) a narrowly tailored “order to closely fit the specific vice encountered.” Applying these here, the court concluded “that the district court complied with its due process obligations when it designated Wasserman as a vexatious litigator.” Finally, it held that the district court “committed no error, plain or otherwise, in not recusing.” Affirmed.