Hall v. GMAC Mortgage, et al.

2011 DNH 034

• Court: District Court, D. New Hampshire
• Decided: March 4, 2011
• Docket: 10-CV-158-SM
• Status: Published

Opinion

Hall v . GMAC Mortgage, et a l . 10-CV-158-SM 3/4/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robin Hall, Plaintiff

v. Case N o . 10-cv-158-SM Opinion N o . 2011 DNH 034 Mortgage Electronic Registration Systems, Inc., and GMAC Mortgage, LLC, Defendants

O R D E R

Plaintiff seeks to voluntarily dismiss her complaint without

prejudice. Defendants object.

Rule 41 of the Federal Rules of Civil Procedure provides, in

pertinent part, that:

[T]he plaintiff may dismiss an action without a court order by filing:

(I) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment;

Fed. R. Civ. P. 41(a)(1)(A). Subject to an exception not invoked

by defendants, the rule also provides that such a dismissal shall

be without prejudice. Fed. R. Civ. P. 41(a)(1)(B). See also

Universidad Cent. Del Caribe, Inc. v . Liaison Comm. on Medical

Educ., 760 F.2d 1 4 , 19 (1st Cir. 1985) ("[T]he plaintiff had the

right voluntarily to dismiss the case at any time before an answer or a motion for summary judgment was served. The

plaintiff properly invoked that right, and the district court had

no power to condition its dismissal.").

Defendants did not file an answer to plaintiff's complaint.

Defendants have, recently, filed a motion to dismiss (document

no. 1 2 ) , and earlier filed a pleading styled “Defendants . . .

Motion for Entry of Judgment” (document n o . 9 ) . A motion to

dismiss does not preclude a plaintiff from invoking his or her

right under Rule 41(a)(1)(A) to voluntarily dismiss an action

without prejudice. As the Court of Appeals for the Third Circuit

observed:

Because a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is neither an answer nor a motion for summary judgment, its filing generally does not cut off a plaintiff's right to dismiss by notice. Only when a motion filed under Fed. R. Civ. P. 12(b)(6) is converted by the district court into a motion for summary judgment does it bar voluntary dismissal.

In re Bath & Kitchen Fixtures Antitrust Litig., 535 F.3d 161, 166

(3d Cir. 2008) (citations and footnote omitted). See also Manze

v . State Farm Ins. Co., 817 F.2d 1062, 1066 (3d Cir. 1987)

(collecting cases).

Accordingly, in this case, plaintiff cannot unilaterally

withdraw her complaint (without prejudice) only if defendants’

2 motion “for judgment” (document n o . 9 ) qualifies as a motion for

summary judgment. See, e.g., Universidad Cent. Del Caribe, 760

F.2d at 19 ("Rule 41(a)(1) is clear and unambiguous on its face

and admits of no exceptions that call for the exercise of

judicial discretion by any court. Other than to determine,

should the question arise, whether an answer or a motion for

summary judgment has in fact been filed prior to the filing of a

notice of dismissal, a court has no function under Rule

41(a)(1)(A)(I).") (quoting D.C. Electronics, Inc. v . Nartron

Corp., 511 F.2d 294, 298 (6th Cir. 1975)).

Defendants’ motion “for judgment” is mildly ambiguous, in

the sense that it refers in the caption to “entry of judgment,”

and in the body invokes (curiously) Rule 58 (having to do with

the process of entering a judgment). The pleading does not

invoke Fed. R. Civ. P. 5 6 , does not plainly seek “summary

judgment” on grounds that the material facts are undisputed and,

given those undisputed facts, defendants are entitled to judgment

as a matter of law, and, indeed, the specific relief sought in

the motion is dismissal (“WHEREFORE, Defendants respectfully

request this Honorable Court to dismiss Plaintiff’s Petition

without prejudice.”). Had counsel sought summary judgment, it is

safe to assume that they would have filed a traditional and

familiar motion, properly captioned, under Rule 5 6 , supported by

3 affidavits and the required statement of undisputed facts, and

would have asked for entry of judgment as a matter of applicable

law in defendants’ favor. However curiously styled and composed

the earlier motion (document n o . 9 ) was not a motion for summary

judgment, and, of course, the court did not treat it as such.

Conclusion

Given the plain language of Rule 41(a)(1), “[defendants]

cannot complain that the plaintiff exercised her prerogative

under the rule when [defendants] could have prevented voluntary

dismissal simply by answering the complaint[,]" Manze, 817 F.2d

at 1066, or by filing a motion for summary judgment. Plaintiff's

complaint is dismissed without prejudice. (The motion (document

no. 14) is construed as a notice of dismissal, and requires no

ruling.) Defendants' motion to dismiss (document n o . 12) is

denied as moot. The Clerk of Court shall close the case.

SO ORDERED.

March 4 , 2011

cc: Steven J. Venezia, Esq. Brian S . Grossman, Esq. Christopher A . D. Hunt, Esq.