In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1530

REGINA SMITH,

Plaintiff-Appellant,

v.

JOHN E. POTTER, Postmaster General,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 7021—John W. Darrah, Judge.

____________

ARGUED DECEMBER 11, 2007—DECIDED JANUARY 29, 2008

____________

Before POSNER, WOOD, and EVANS, Circuit Judges.

POSNER, Circuit Judge. The plaintiff sued the postal

service in December 2004 charging sex discrimination in

the form of sexual harassment, in violation of Title VII.

The complaint alleged that coworkers made sexually

offensive comments to her and also touched her in sexually offensive ways and that management refused despite her complaints to act against the harassment. She

asked for damages and an injunction. The defendant did

not file an answer, but instead moved to dismiss the suit

on the basis of improper service. Before the judge could

decide the motion, the plaintiff filed a notice of (cap-
2 No. 07-1530

tioned however as a motion for) voluntary dismissal. Fed.

R. Civ. P. 41(a)(1). The district judge responded by dismissing the suit with prejudice. One month later, the

plaintiff filed another, quite similar suit, but it sought only

damages and while repeating the allegations in the first

complaint added allegations of similar misconduct committed after the filing of that suit. The district judge

dismissed the second suit as barred by res judicata.

Rule 41(a)(1) provides that if the plaintiff “files a notice

of dismissal before the opposing party serves either an

answer or a motion for summary judgment . . . the dismissal is without prejudice.” The plaintiff sought to

dismiss her first suit before the defendant filed either an

answer or a motion for summary judgment, so the judge

was not authorized to dismiss the suit with prejudice. The

miscaptioned motion itself effected the dismissal of the

suit; the case was gone; no action remained for the district judge to take. Since there was no longer a case pending before him, and since a federal judge’s authority to

issue orders depends (with immaterial exceptions) on the

existence of a case, his order was void. Marques v. Federal

Reserve Bank of Chicago, 286 F.3d 1014, 1018 (7th Cir. 2002);

Bryan v. Smith, 164 F.2d 212, 214 (7th Cir. 1949); Commercial

Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077 n. 4 (9th

Cir. 1999); see also Beck v. Caterpillar, Inc., 50 F.3d 405, 407

(7th Cir. 1995); Foss v. Federal Intermediate Credit Bank,

808 F.2d 657, 660 (8th Cir. 1986). And, being void, it can

have no effect in the present suit, even though neither

party noticed the error; “void judgments are legal nullities.” United States v. Indoor Cultivation Equipment, 766 F.2d

1153, 1159 (7th Cir. 1985); United States v. Martin, 378 F.3d

353, 358 (4th Cir. 2004). “It is as if the suit had never been

brought.” Bryan v. Smith, supra, 164 F.2d at 214. The
No. 07-1530 3

dismissal of the first suit was without prejudice, and

such a dismissal does not have res judicata effect.

In fairness to the judge, the plaintiff’s lawyer had captioned the Rule 41(a)(1) notice of dismissal “motion to

voluntarily dismiss the plaintiff’s complaint.” The motion

explained, however, that the plaintiff “no longer wishes

to proceed with the complaint,” and in an affidavit attached to the motion she said “I wish to dismiss the above

stated [i.e., this] case.” In substance, then, this was a

Rule 41(a)(1) motion, as courts in similar cases have held.

E.g., Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir. 1976);

Roddy v. Dendy, 141 F.R.D. 261 (S.D. Miss. 1992). The

judge’s statement that the plaintiff had moved “to voluntarily dismiss the complaint with prejudice” is incorrect;

there is no reference to dismissal with prejudice either

in the motion or in the affidavit attached to it.

Even if the dismissal had been with prejudice, the district court would have been mistaken to dismiss the second suit on the ground of res judicata. Res judicata does

not bar a suit based on claims that accrue after a previous

suit was filed. Doe v. Allied-Signal, Inc., 985 F.2d 908, 914

(7th Cir. 1993); Spiegel v. Continental Illinois National Bank,

790 F.2d 638, 646 (7th Cir. 1986); Rawe v. Liberty Mutual Fire

Ins. Co., 462 F.3d 521, 530 (6th Cir. 2006); Computer Associates Int’l, Inc. v. Altai, Inc., 126 F.3d 365, 369-70 (2d Cir.

1997); Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th

Cir. 1992). It does not matter whether, as in the case of

harassment, the unlawful conduct is a practice, repetitive

by nature, see National Railroad Passenger Corp. v. Morgan,

536 U.S. 101, 117-19 (2002), that happens to continue after

the first suit is filed, or whether it is an act, causing discrete, calculable harm, that happens to be repeated. The

filing of a suit does not entitle the defendant to continue
4 No. 07-1530

or repeat the unlawful conduct with immunity from

further suit. Lawlor v. National Screen Service Corp., 349 U.S.

322, 328 (1955).

It is true that some of the alleged harassment that occurred after the plaintiff filed her first suit occurred before

she dismissed the suit, and so, the government argues,

she could have amended her complaint to add an allegation of that harassment. But as the Doe and Rawe decisions

cited above hold, there is no legal duty to amend rather

than bring a fresh suit, especially since a plaintiff has a

right to amend her complaint only once without leave

of court. Fed. R. Civ. P. 15(a). Suppose that a year into the

case, with trial about to begin, the plaintiff experienced

a fresh act of harassment. The judge might quite understandably not want to allow her to amend her complaint

to add the new allegation, because that might require

additional discovery and so force postponement of the

trial. On the government’s view, the judge would have

to either allow the amendment, in order to prevent the

bar of res judicata from cutting off the plaintiff’s access

to a remedy for the fresh harassment, or deny it and

by doing so deny her any remedy. Neither alternative

is attractive.

Nor is the government right to argue that the plaintiff’s

second suit should be barred because she sought injunctive relief in her first suit and had it been granted the

additional misconduct alleged in the second suit would

have been prevented. Suppose the plaintiff sues on day 1,

on day 2 exercises her right to dismiss the suit without prejudice, and on day 3 is subjected to additional

harassment. The government’s position appears to be that

having sought injunctive relief in the first suit, she could

obtain no remedy against the new harassment, although
No. 07-1530 5

she could obtain a remedy against the old harassment by

filing a new suit. That makes no sense.

REVERSED AND REMANDED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-29-08