“[W]e do not know which document, the plaintiffs’ notice of voluntary dismissal or the defendant’s motion to dismiss, was filed first. The plaintiffs argue that the bank acknowledged in the district court that the notice of voluntary dismissal was filed before the motion for summary judgment was served, but the only record of this acknowledgment is a transcript that the parties neglected to make a part of the appellate record. However, the district judge, rather than make a finding on which document came first, appears to have believed that as long as they were on the same day, it didn’t matter which came first. (It is unquestioned that the plaintiffs did succeed in dismissing the FDIC as a defendant under Rule 41(a)(1), and it is not a party to this appeal.) We cannot find an appellate case on who has the burden of proving the sequence of the filings, but Keal v. Monarch Life Ins. Co., 126 F.R.D. 567 (D. Kan. 1989), places the burden on the defendant, sensibly, as it seems to us, since it is the defendant that is asserting the right to prevent the plaintiff from dismissing the suit.
“There is … considerable and unchallenged case authority (including decisions by this court) that a judgment on the merits that is entered after the plaintiff has filed a proper Rule 41(a)(1) notice of dismissal is indeed void… The cases further make clear that although not every ‘void’ judgment is subject to collateral attack, only those where the voidness is unarguable, In re Edwards, 962 F.2d 641, 644 (7th Cir. 1992), the refusal to vacate under Rule 60(b)(4) an unarguably void judgment is an abuse of discretion.”
“We are therefore compelled to reverse the judgment and direct the dismissal of the suit, without prejudice, under Rule 41(a)(1). Should the plaintiffs attempt to bring a new suit similar to the one they are dismissing, namely a fraudulent and possibly a criminal suit, they will be subject to appropriate sanctions.”
Appeal from the United States District Court for the Northern District of Illinois, Leinenweber, J., Posner, J.