SEMTEK INTERNATIONAL INC. v. LOCKHEED MARTIN CORP.

531 U.S. 497Supreme Court Of The United States27 feb 2001

Testo completo

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497 OCTOBER TERM, 2000
Syllabus
SEMTEK INTERNATIONAL INC. v. LOCKHEED
MARTIN CORP.
certiorari to the court of special appeals
of maryland
No. 99–1551. Argued December 5, 2000—Decided February 27, 2001
Respondent removed petitioner’s California state-court suit to a Cali-
fornia Federal District Court based on diversity of citizenship, and
successfully moved to dismiss the case “on the merits” as barred by
California’s statute of limitations. Petitioner then brought suit in a
Maryland Circuit Court, alleging the same causes of action, which were
not time barred under Maryland’s statute of limitations. That court
dismissed the case on the ground of res judicata. In affirming, the
Maryland Court of Special Appeals held that, regardless of whether
California would have accorded claim-preclusive effect to a statute-of-
limitations dismissal by one of its own courts, the California federal
court’s dismissal barred the Maryland complaint because the res judicata
effect of federal diversity judgments is prescribed by federal law, under
which the earlier dismissal was on the merits and claim preclusive.
Held: Because the claim-preclusive effect of a federal court’s dismissal
“upon the merits” of a diversity action on state statute-of-limitations
grounds is governed by a federal rule, which in turn (in diversity cases)
incorporates the claim-preclusion law that would be applied by state
courts in the State in which the federal court sits, the Maryland Court
of Special Appeals erred in holding that the California federal court’s
dismissal “upon the merits” necessarily precluded the Maryland state-
court action. Pp. 500–509.
(a) Dupasseur v. Rochereau, 21 Wall. 130, held that the res judi-
cata effect of a federal diversity judgment “is such as would belong to
judgments of the State courts rendered under similar circumstances,”
id., at 135. That case is not dispositive here, however, because it was
decided under the Conformity Act of 1872, which required federal
courts to apply the procedural law of the forum State in nonequity cases.
Neither is claim-preclusive effect demanded by Rule 41(b)—which pro-
vides that, unless the court “otherwise specifies,” an involuntary dis-
missal, other than a dismissal for lack of jurisdiction, improper venue,
or failure to join a party under Rule 19, “operates as an adjudication
upon the merits.” Although the original connotation of a judgment
“on the merits” was one that passes directly on the substance of a claim

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498 SEMTEK INT’L INC. v. LOCKHEED MARTIN CORP.
Syllabus
(which would be claim preclusive), the meaning of the term has under-
gone change, and does not necessarily designate a judgment effecting
claim preclusion. There are a number of reasons for believing it does
not bear that meaning in Rule 41(b). It would be peculiar to announce
a federally prescribed rule on claim preclusion in a default rule for
determining a dismissal’s import, or to find a rule governing the effect
to be accorded federal judgments by other courts ensconced in rules
governing the internal procedures of the rendering court itself. More-
over, as so interpreted, the Rule would in many cases violate the
federalism principle of Erie R. Co. v. Tompkins, 304 U. S. 64, 78–80,
by engendering substantial variations in outcomes between state
and federal litigation which would likely influence forum choice, Hanna
v. Plumer, 380 U. S. 460, 467–468. Finally, this Court has never relied
upon the Rule when recognizing the claim-preclusive effect of fed-
eral judgments in federal-question cases. Rule 41(a) makes clear that
“an adjudication upon the merits” in Rule 41(b) is the opposite of a
dismissal without prejudice—that is, it is a dismissal that prevents re-
filing of the claim in the same court. That is undoubtedly a necessary
condition, but not a sufficient one, for claim-preclusive effect in other
courts. Pp. 500–506.
(b) Federal common law governs the claim-preclusive effect of a dis-
missal by a federal court sitting in diversity, and it is up to this Court
to determine the appropriate federal rule. Since in diversity cases
state, rather than federal, substantive law is at issue, there is no need
for a uniform federal rule; and nationwide uniformity is better served
by having the same claim-preclusive rule (the state rule) apply whether
the dismissal has been ordered by a state or a federal court. Any other
rule would produce the sort of forum shopping and inequitable ad-
ministration of the laws that Erie seeks to avoid. While the federal
reference to state law will not obtain in situations in which the state
law is incompatible with federal interests, no such conflict exists here.
Pp. 506–509.
128 Md. App. 39, 736 A. 2d 1104, reversed and remanded.
Scalia, J., delivered the opinion for a unanimous Court.
Michael Gottesman argued the cause for petitioner. With
him on the briefs were Jonathan S. Massey, Kenneth J.
Chesebro, Thomas V. Girardi, Thomas C. Goldstein, Walter
J. Lack, Andrew W. Zepeda, and Steven L. Hogan.

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499 Cite as: 531 U. S. 497 (2001)
Opinion of the Court
Walter E. Dellinger argued the cause for respondent.
With him on the brief were Robert E. Willett, Francis B.
Burch, Jr., and Martin H. Redish.*
Justice Scalia delivered the opinion of the Court.
This case presents the question whether the claim-
preclusive effect of a federal judgment dismissing a diver-
sity action on statute-of-limitations grounds is determined
by the law of the State in which the federal court sits.
I
Petitioner filed a complaint against respondent in Cali-
fornia state court, alleging inducement of breach of contract
and various business torts. Respondent removed the case
to the United States District Court for the Central District
of California on the basis of diversity of citizenship, see 28
U. S. C. §§ 1332, 1441 (1994 ed. and Supp. IV), and success-
fully moved to dismiss petitioner’s claims as barred by Cali-
fornia’s 2-year statute of limitations. In its order of dis-
missal, the District Court, adopting language suggested by
respondent, dismissed petitioner’s claims “in [their] entirety
on the merits and with prejudice.” App. to Pet. for Cert.
59a. Without contesting the District Court’s designation of
its dismissal as “on the merits,” petitioner appealed to the
Court of Appeals for the Ninth Circuit, which affirmed the
District Court’s order. 168 F. 3d 501 (1999) (table). Peti-
tioner also brought suit against respondent in the State Cir-
cuit Court for Baltimore City, Maryland, alleging the same
causes of action, which were not time barred under Mary-
land’s 3-year statute of limitations. Respondent sought in-
junctive relief against this action from the California federal
court under the All Writs Act, 28 U. S. C. § 1651, and re-
moved the action to the United States District Court for the
*Griffin B. Bell, Chilton Davis Varner, Paul D. Clement, and Jeffrey
S. Bucholtz filed a brief for the Product Liability Advisory Council, Inc.,
as amicus curiae urging affirmance.

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500 SEMTEK INT’L INC. v. LOCKHEED MARTIN CORP.
Opinion of the Court
District of Maryland on federal-question grounds (diversity
grounds were not available because Lockheed “is a Maryland
citizen,” Semtek Int’l, Inc. v. Lockheed Martin Corp., 988
F. Supp. 913, 914 (1997)). The California federal court de-
nied the relief requested, and the Maryland federal court re-
manded the case to state court because the federal question
arose only by way of defense, ibid. Following a hearing, the
Maryland state court granted respondent’s motion to dismiss
on the ground of res judicata. Petitioner then returned to
the California federal court and the Ninth Circuit, unsuccess-
fully moving both courts to amend the former’s earlier order
so as to indicate that the dismissal was not “on the merits.”
Petitioner also appealed the Maryland trial court’s order of
dismissal to the Maryland Court of Special Appeals. The
Court of Special Appeals affirmed, holding that, regardless
of whether California would have accorded claim-preclusive
effect to a statute-of-limitations dismissal by one of its own
courts, the dismissal by the California federal court barred
the complaint filed in Maryland, since the res judicata effect
of federal diversity judgments is prescribed by federal law,
under which the earlier dismissal was on the merits and
claim preclusive. 128 Md. App. 39, 736 A. 2d 1104 (1999).
After the Maryland Court of Appeals declined to review the
case, we granted certiorari. 530 U. S. 1260 (2000).
II
Petitioner contends that the outcome of this case is con-
trolled by Dupasseur v. Rochereau, 21 Wall. 130, 135 (1875),
which held that the res judicata effect of a federal diver-
sity judgment “is such as would belong to judgments of
the State courts rendered under similar circumstances,” and
may not be accorded any “higher sanctity or effect.” Since,
petitioner argues, the dismissal of an action on statute-of-
limitations grounds by a California state court would not be
claim preclusive, it follows that the similar dismissal of this
diversity action by the California federal court cannot be

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Opinion of the Court
claim preclusive. While we agree that this would be the
result demanded by Dupasseur, the case is not dispositive
because it was decided under the Conformity Act of 1872,
17 Stat. 196, which required federal courts to apply the pro-
cedural law of the forum State in nonequity cases. That
arguably affected the outcome of the case. See Dupasseur,
supra, at 135. See also Restatement (Second) of Judgments
§ 87, Comment a, p. 315 (1980) (hereinafter Restatement)
(“Since procedural law largely determines the matters that
may be adjudicated in an action, state law had to be consid-
ered in ascertaining the effect of a federal judgment”).
Respondent, for its part, contends that the outcome of this
case is controlled by Federal Rule of Civil Procedure 41(b),
which provides as follows:
“Involuntary Dismissal: Effect Thereof. For failure of
the plaintiff to prosecute or to comply with these rules
or any order of court, a defendant may move for dis-
missal of an action or of any claim against the defendant.
Unless the court in its order for dismissal otherwise
specifies, a dismissal under this subdivision and any
dismissal not provided for in this rule, other than a
dismissal for lack of jurisdiction, for improper venue, or
for failure to join a party under Rule 19, operates as an
adjudication upon the merits.”
Since the dismissal here did not “otherwise specif[y]” (in-
deed, it specifically stated that it was “on the merits”), and
did not pertain to the excepted subjects of jurisdiction,
venue, or joinder, it follows, respondent contends, that the
dismissal “is entitled to claim preclusive effect.” Brief for
Respondent 3–4.
Implicit in this reasoning is the unstated minor premise
that all judgments denominated “on the merits” are entitled
to claim-preclusive effect. That premise is not necessarily
valid. The original connotation of an “on the merits” adjudi-
cation is one that actually “pass[es] directly on the substance

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of [a particular] claim” before the court. Restatement § 19,
Comment a, at 161. That connotation remains common to
every jurisdiction of which we are aware. See ibid. (“The
prototyp[ical] [judgment on the merits is] one in which the
merits of [a party’s] claim are in fact adjudicated [for or]
against the [party] after trial of the substantive issues”).
And it is, we think, the meaning intended in those many
statements to the effect that a judgment “on the merits”
triggers the doctrine of res judicata or claim preclusion.
See, e. g., Parklane Hosiery Co. v. Shore, 439 U. S. 322, 326,
n. 5 (1979) (“Under the doctrine of res judicata, a judgment
on the merits in a prior suit bars a second suit involving
the same parties or their privies based on the same cause
of action”); Goddard v. Security Title Ins. & Guarantee Co.,
14 Cal. 2d 47, 51, 92 P. 2d 804, 806 (1939) (“[A] final judg-
ment, rendered upon the merits by a court having jurisdic-
tion of the cause . . . is a complete bar to a new suit between
[the parties or their privies] on the same cause of action”
(internal quotation marks and citations omitted)).
But over the years the meaning of the term “judgment on
the merits” “has gradually undergone change,” R. Marcus,
M. Redish, & E. Sherman, Civil Procedure: A Modern Ap-
proach 1140–1141 (3d ed. 2000), and it has come to be applied
to some judgments (such as the one involved here) that do
not pass upon the substantive merits of a claim and hence
do not (in many jurisdictions) entail claim-preclusive effect.
Compare, e. g., Western Coal & Mining Co. v. Jones, 27 Cal.
2d 819, 826, 167 P. 2d 719, 724 (1946), and Koch v. Rodlin
Enterprises, Inc., 223 Cal. App. 3d 1591, 1596, 273 Cal. Rptr.
438, 441 (1990), with Plaut v. Spendthrift Farm, Inc., 514
U. S. 211, 228 (1995) (statute of limitations); Goddard, supra,
at 50–51, 92 P. 2d, at 806–807, and Allston v. Incorporated
Village of Rockville Centre, 25 App. Div. 2d 545, 546, 267
N. Y. S. 2d 564, 565–566 (1966), with Federated Department
Stores, Inc. v. Moitie, 452 U. S. 394, 399, n. 3 (1981) (demurrer
or failure to state a claim). See also Restatement § 19, Com-

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ment a and Reporter’s Note; 18 C. Wright, A. Miller, &
E. Cooper, Federal Practice and Procedure § 4439, pp. 355–
358 (1981) (hereinafter Wright & Miller). That is why the
Restatement of Judgments has abandoned the use of the
term—“because of its possibly misleading connotations,” Re-
statement § 19, Comment a, at 161.
In short, it is no longer true that a judgment “on the
merits” is necessarily a judgment entitled to claim-preclusive
effect; and there are a number of reasons for believing that
the phrase “adjudication upon the merits” does not bear
that meaning in Rule 41(b). To begin with, Rule 41(b) sets
forth nothing more than a default rule for determining
the import of a dismissal (a dismissal is “upon the merits,”
with the three stated exceptions, unless the court “other-
wise specifies”). This would be a highly peculiar context in
which to announce a federally prescribed rule on the complex
question of claim preclusion, saying in effect, “All federal
dismissals (with three specified exceptions) preclude suit
elsewhere, unless the court otherwise specifies.”
And even apart from the purely default character of Rule
41(b), it would be peculiar to find a rule governing the effect
that must be accorded federal judgments by other courts
ensconced in rules governing the internal procedures of the
rendering court itself. Indeed, such a rule would arguably
violate the jurisdictional limitation of the Rules Enabling
Act: that the Rules “shall not abridge, enlarge or modify any
substantive right,” 28 U. S. C. § 2072(b). Cf. Ortiz v. Fibre-
board Corp., 527 U. S. 815, 842 (1999) (adopting a “limiting
construction” of Federal Rule of Civil Procedure 23(b)(1)(B)
in order to “minimiz[e] potential conflict with the Rules En-
abling Act, and [to] avoi[d] serious constitutional concerns”).
In the present case, for example, if California law left peti-
tioner free to sue on this claim in Maryland even after the
California statute of limitations had expired, the federal
court’s extinguishment of that right (through Rule 41(b)’s

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mandated claim-preclusive effect of its judgment) would
seem to violate this limitation.
Moreover, as so interpreted, the Rule would in many cases
violate the federalism principle of Erie R. Co. v. Tompkins,
304 U. S. 64, 78–80 (1938), by engendering “ ‘substantial’
variations [in outcomes] between state and federal litigation”
which would “[l]ikely . . . influence the choice of a forum,”
Hanna v. Plumer, 380 U. S. 460, 467–468 (1965). See also
Guaranty Trust Co. v. York, 326 U. S. 99, 108–110 (1945).
Cf. Walker v. Armco Steel Corp., 446 U. S. 740, 748–753
(1980). With regard to the claim-preclusion issue involved
in the present case, for example, the traditional rule is that
expiration of the applicable statute of limitations merely
bars the remedy and does not extinguish the substantive
right, so that dismissal on that ground does not have claim-
preclusive effect in other jurisdictions with longer, unexpired
limitations periods. See Restatement (Second) of Conflict
of Laws §§ 142(2), 143 (1969); Restatement of Judgments § 49,
Comment a (1942). Out-of-state defendants sued on stale
claims in California and in other States adhering to this
traditional rule would systematically remove state-law suits
brought against them to federal court—where, unless other-
wise specified, a statute-of-limitations dismissal would bar
suit everywhere.1
Finally, if Rule 41(b) did mean what respondent suggests,
we would surely have relied upon it in our cases recognizing
the claim-preclusive effect of federal judgments in federal-
question cases. Yet for over half a century since the pro-
1 Rule 41(b), interpreted as a preclusion-establishing rule, would not
have the two effects described in the preceding paragraphs—arguable
violation of the Rules Enabling Act and incompatibility with Erie R. Co.
v. Tompkins, 304 U. S. 64 (1938)—if the court’s failure to specify an other-
than-on-the-merits dismissal were subject to reversal on appeal whenever
it would alter the rule of claim preclusion applied by the State in which
the federal court sits. No one suggests that this is the rule, and we are
aware of no case that applies it.

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mulgation of Rule 41(b), we have not once done so. See,
e. g., Heck v. Humphrey, 512 U. S. 477, 488–489, n. 9 (1994);
Federated Department Stores, Inc. v. Moitie, supra, at 398;
Blonder-Tongue Laboratories, Inc. v. University of Ill.
Foundation, 402 U. S. 313, 324, n. 12 (1971).
We think the key to a more reasonable interpretation of
the meaning of “operates as an adjudication upon the merits”
in Rule 41(b) is to be found in Rule 41(a), which, in discussing
the effect of voluntary dismissal by the plaintiff, makes clear
that an “adjudication upon the merits” is the opposite of a
“dismissal without prejudice”:
“Unless otherwise stated in the notice of dismissal or
stipulation, the dismissal is without prejudice, except
that a notice of dismissal operates as an adjudication
upon the merits when filed by a plaintiff who has once
dismissed in any court of the United States or of any
state an action based on or including the same claim.”
See also 18 Wright & Miller § 4435, at 329, n. 4 (“Both parts
of Rule 41 . . . use the phrase ‘without prejudice’ as a contrast
to adjudication on the merits”); 9 id., § 2373, at 396, n. 4
(“ ‘[W]ith prejudice’ is an acceptable form of shorthand for
‘an adjudication upon the merits’ ”). See also Goddard, 14
Cal. 2d, at 54, 92 P. 2d, at 808 (stating that a dismissal “with
prejudice” evinces “[t]he intention of the court to make
[the dismissal] on the merits”). The primary meaning of
“dismissal without prejudice,” we think, is dismissal without
barring the plaintiff from returning later, to the same court,
with the same underlying claim. That will also ordinarily
(though not always) have the consequence of not barring the
claim from other courts, but its primary meaning relates to
the dismissing court itself. Thus, Black’s Law Dictionary
(7th ed. 1999) defines “dismissed without prejudice” as “re-
moved from the court’s docket in such a way that the plaintiff
may refile the same suit on the same claim,” id., at 482, and
defines “dismissal without prejudice” as “[a] dismissal that

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does not bar the plaintiff from refiling the lawsuit within the
applicable limitations period,” ibid.
We think, then, that the effect of the “adjudication upon
the merits” default provision of Rule 41(b)—and, presum-
ably, of the explicit order in the present case that used the
language of that default provision—is simply that, unlike a
dismissal “without prejudice,” the dismissal in the present
case barred refiling of the same claim in the United States
District Court for the Central District of California. That
is undoubtedly a necessary condition, but it is not a sufficient
one, for claim-preclusive effect in other courts.2
III
Having concluded that the claim-preclusive effect, in
Maryland, of this California federal diversity judgment is
dictated neither by Dupasseur v. Rochereau, as petitioner
contends, nor by Rule 41(b), as respondent contends, we
turn to consideration of what determines the issue. Neither
the Full Faith and Credit Clause, U. S. Const., Art. IV, § 1,3
nor the full faith and credit statute, 28 U. S. C. § 1738,4 ad-
2 We do not decide whether, in a diversity case, a federal court’s “dis-
missal upon the merits” (in the sense we have described), under circum-
stances where a state court would decree only a “dismissal without preju-
dice,” abridges a “substantive right” and thus exceeds the authorization
of the Rules Enabling Act. We think the situation will present itself more
rarely than would the arguable violation of the Act that would ensue from
interpreting Rule 41(b) as a rule of claim preclusion; and if it is a violation,
can be more easily dealt with on direct appeal.
3 Article IV, § 1, provides as follows:
“Full Faith and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State. And the Con-
gress may by general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect thereof.”
4 Title 28 U. S. C. § 1738 provides in relevant part as follows:
“The records and judicial proceedings of any court of any . . . State,
Territory or Possession . . . shall have the same full faith and credit in
every court within the United States and its Territories and Possessions
as they have by law or usage in the courts of such State, Territory or
Possession from which they are taken.”

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dresses the question. By their terms they govern the ef-
fects to be given only to state-court judgments (and, in the
case of the statute, to judgments by courts of territories
and possessions). And no other federal textual provision,
neither of the Constitution nor of any statute, addresses the
claim-preclusive effect of a judgment in a federal diversity
action.
It is also true, however, that no federal textual provision
addresses the claim-preclusive effect of a federal-court judg-
ment in a federal-question case, yet we have long held that
States cannot give those judgments merely whatever effect
they would give their own judgments, but must accord them
the effect that this Court prescribes. See Stoll v. Gottlieb,
305 U. S. 165, 171–172 (1938); Gunter v. Atlantic Coast Line
R. Co., 200 U. S. 273, 290–291 (1906); Deposit Bank v. Frank-
fort, 191 U. S. 499, 514–515 (1903). The reasoning of that
line of cases suggests, moreover, that even when States are
allowed to give federal judgments (notably, judgments in
diversity cases) no more than the effect accorded to state
judgments, that disposition is by direction of this Court,
which has the last word on the claim-preclusive effect of all
federal judgments:
“It is true that for some purposes and within certain
limits it is only required that the judgments of the
courts of the United States shall be given the same force
and effect as are given the judgments of the courts of
the States wherein they are rendered; but it is equally
true that whether a Federal judgment has been given
due force and effect in the state court is a Federal ques-
tion reviewable by this court, which will determine for
itself whether such judgment has been given due weight
or otherwise. . . .
“When is the state court obliged to give to Federal
judgments only the force and effect it gives to state
court judgments within its own jurisdiction? Such
cases are distinctly pointed out in the opinion of Mr. Jus-

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tice Bradley in Dupasseur v. Rochereau [which stated
that the case was a diversity case, applying state law
under state procedure].” Ibid.
In other words, in Dupasseur the State was allowed (indeed,
required) to give a federal diversity judgment no more effect
than it would accord one of its own judgments only because
reference to state law was the federal rule that this Court
deemed appropriate. In short, federal common law governs
the claim-preclusive effect of a dismissal by a federal court
sitting in diversity. See generally R. Fallon, D. Meltzer, &
D. Shapiro, Hart and Wechsler’s The Federal Courts and
the Federal System 1473 (4th ed. 1996); Degnan, Federalized
Res Judicata, 85 Yale L. J. 741 (1976).
It is left to us, then, to determine the appropriate federal
rule. And despite the sea change that has occurred in the
background law since Dupasseur was decided—not only re-
peal of the Conformity Act but also the watershed decision
of this Court in Erie—we think the result decreed by Du-
passeur continues to be correct for diversity cases. Since
state, rather than federal, substantive law is at issue there
is no need for a uniform federal rule. And indeed, nation-
wide uniformity in the substance of the matter is better
served by having the same claim-preclusive rule (the state
rule) apply whether the dismissal has been ordered by a
state or a federal court. This is, it seems to us, a classic
case for adopting, as the federally prescribed rule of deci-
sion, the law that would be applied by state courts in the
State in which the federal diversity court sits. See Gas-
perini v. Center for Humanities, Inc., 518 U. S. 415, 429–431
(1996); Walker v. Armco Steel Corp., 446 U. S., at 752–753;
Bernhardt v. Polygraphic Co. of America, 350 U. S. 198, 202–
205 (1956); Palmer v. Hoffman, 318 U. S. 109, 117 (1943);
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496 (1941);
Cities Service Oil Co. v. Dunlap, 308 U. S. 208, 212 (1939).
As we have alluded to above, any other rule would produce
the sort of “forum-shopping . . . and . . . inequitable ad-

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ministration of the laws” that Erie seeks to avoid, Hanna,
380 U. S., at 468, since filing in, or removing to, federal court
would be encouraged by the divergent effects that the
litigants would anticipate from likely grounds of dismissal.
See Guaranty Trust Co. v. York, 326 U. S., at 109–110.
This federal reference to state law will not obtain, of
course, in situations in which the state law is incompati-
ble with federal interests. If, for example, state law did
not accord claim-preclusive effect to dismissals for willful
violation of discovery orders, federal courts’ interest in the
integrity of their own processes might justify a contrary
federal rule. No such conflict with potential federal inter-
ests exists in the present case. Dismissal of this state cause
of action was decreed by the California federal court only
because the California statute of limitations so required; and
there is no conceivable federal interest in giving that time
bar more effect in other courts than the California courts
themselves would impose.
* * *
Because the claim-preclusive effect of the California fed-
eral court’s dismissal “upon the merits” of petitioner’s action
on statute-of-limitations grounds is governed by a federal
rule that in turn incorporates California’s law of claim pre-
clusion (the content of which we do not pass upon today),
the Maryland Court of Special Appeals erred in holding that
the dismissal necessarily precluded the bringing of this ac-
tion in the Maryland courts. The judgment is reversed, and
the case remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.

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