                             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 sex-
ually offensive ways and that management refused de-
spite 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 dis-
missing 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 com-
mitted 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 dis-
missal 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 dis-
trict judge to take. Since there was no longer a case pend-
ing 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 nulli-
ties.” 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 cap-
tioned 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 at-
tached 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 volun-
tarily 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 dis-
trict court would have been mistaken to dismiss the sec-
ond 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 Associ-
ates 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 dis-
crete, 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 oc-
curred 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 allega-
tion 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 under-
standably 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 injunc-
tive 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 with-
out 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




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