                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-1734
                                  ___________

Cheryl Luney,                          *
                                       *
           Plaintiff - Appellant,       *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri
                                       *
SGS Automotive Services, Inc.;         *
Garry Copenhaver,                      *
                                       *
           Defendant - Appellees.      *
                                  ___________

                         Submitted: December 12, 2005
                             Filed: December 28, 2005
                                 ___________

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

     Cheryl Luney appeals the district court’s1 dismissal of her claims against SGS
Automotive Services, Inc. (“SGS”) and Garry Copenhaver. We affirm. However, we
deem her battery claim to have been dismissed without prejudice.

      1
        The Honorable Gary Fenner, United States District Judge for the Western
District of Missouri.
      Cheryl Luney worked for SGS from March 2002 until her termination on
October 11, 2002. Luney alleges that during that time she was sexually harassed by
Garry Copenhaver after having rejected his requests for a date and repeated sexual
advances, including inappropriate touching. Luney complained to Copenhaver’s
superior on September 20, 2002. Soon after, SGS cut Luney’s hours in half. It
eventually terminated her employment.

       Luney filed a complaint with the EEOC on November 15, 2002. She received
her right to sue letter on August 13, 2003. Luney filed a sexual harassment and
gender discrimination action against SGS on October 14, 2003. The action was
dismissed on February 23, 2004, for failure to file a proposed scheduling order.
Luney refiled her action against SGS on May 12, 2004, and added a battery claim
against her supervisor Garry Copenhaver. The district court dismissed the second
action, finding that the dismissal of her first action for lack of prosecution was a
dismissal on the merits and thus she was precluded from re-raising the claims against
SGS. The district court rejected the argument that the dismissal was not on the merits
and that the Missouri Savings Statute, Mo. Rev. Stat. § 516.230, applied. The district
court also concluded that it lacked jurisdiction over the state law claims. Luney
appeals, arguing that the district court erred in dismissing her action without properly
considering the Missouri Savings Statute.

       We review a motion to dismiss de novo. In re Acceptance Ins. Cos. Sec. Lit.,
423 F.3d 899, 903 (8th Cir. 2005). “In considering a motion to dismiss, we must
assume that all the facts alleged in the complaint are true. The complaint must be
liberally construed in the light most favorable to the plaintiff.” Holden Farms, Inc. v.
Hog Slat, Inc., 347 F.3d 1055, 1059 (8th Cir. 2003) (internal quotations omitted).

       The central question in this case is whether the dismissal by the district court
constitutes a dismissal on the merits. We believe it does. Luney’s action was

                                          -2-
dismissed pursuant to Rule 41(b), an involuntary dismissal, because of Luney’s failure
to prosecute her claims. An involuntary dismissal under Rule 41(b) is with prejudice
unless stated otherwise by the district court. Rule 41(b) states, “[u]nless the court in
its order for dismissal otherwise specifies, a dismissal under this subdivision . . .
operates as an adjudication on the merits.” In this case, there is no indication in the
district court’s order that it is not an adjudication on the merits. The district court
issued an order to show cause after Luney failed to file a proposed scheduling order
pursuant to an earlier order of the district court. Luney failed to show cause. The
district court’s order included no statements suggesting that the dismissal was to be
a disposition other than with prejudice. Rather, the district court stated that
“[a]lthough Luney contends . . . that the dismissal of the First Action was not on the
merits, she is clearly mistaken.”

       Luney contends she should be permitted to bring her refiled cause of action
under the Missouri Savings Statute. Under this statute, if an action is commenced and
“the plaintiff therein suffer[s] a nonsuit, or, after a verdict for him, the judgment be
arrested, or after a judgment for him, the same be reversed on appeal or error, such
plaintiff may commence a new action . . . within one year . . . .” Mo. Rev. Stat. §
516.230. Luney’s argument fails, however, because the Missouri Savings Statute only
applies to actions “prescribed in sections 516.010 to 516.370” of the Missouri Revised
Statutes. Id. Her actions, filed under Title VII, were not contained within those
provisions. Therefore, even assuming the first action had been dismissed without
prejudice, the Missouri Savings Statute does not apply.

       Finally, as to Luney’s battery claim against Garry Copenhaver, both parties
agree that the dismissal of that claim should have been without prejudice. We agree.
The claim against Mr. Copenhaver was not part of the original cause of action, and
thus that portion of the district court’s dismissal was without prejudice.

      Accordingly, we affirm the decision of the district court.
                           ______________________________


                                          -3-
