Hughes v. Standard Hardware 10-CV-207-SM 10/04/10 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Frederick A. Hughes, Plaintiff
v. Civil No. lO-cv-207-SM Opinion No. 2 010 DNH 174 Standard Hardware Distributors, Inc.; Bradford Geer; Robert Lachance; Joan Varney; Edward Cherneskv; Charles Colletta; and Richard Edmunds, Sr., Defendants
O R D E R
In March of this year, pro se plaintiff, Frederick Hughes,
brought suit against his former employer and several individual
defendants. Hughes claims he was wrongfully terminated from his
employment. He says defendants discriminated against him based
upon his age and an alleged disability. Defendants deny any
wrongdoing and say Hughes was fired for a single reason: he
threatened "to get a '45' (handgun) and blow his [supervisor's]
head off," Exhibit 1 to Plaintiff's Complaint, Merrimack Police
Department, Officer's Formal Report (document no. 1-1) at 2.
Hughes admits he made that comment.
In lieu of filing an answer, defendants filed a "Motion to
Dismiss the Plaintiff's Complaint, or in the Alternative, for
Summary Judgment" (document no. 13). Plaintiff responded by
filing a "Rule 41(a)(2) Request for Voluntary Dismissal Without Prejudice" (document no. 17).1 For the reasons set forth below,
plaintiff's complaint is dismissed without prejudice, pursuant to
Rule 41(a)(1). Defendants' motion to dismiss is denied as moot.
Discussion
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; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
Fed. R. Civ. P. 41(a)(1)(A) (emphasis supplied). 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 v. Liason
Comm, on Medical Educ., 760 F.2d 14, 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
1 As defendants acknowledge, notwithstanding the caption to plaintiff's motion, he actually invokes the provisions of Rule 41(a)(1), not (a)(2), in support of his request to voluntarily dismiss his claims without prejudice. See Plaintiff's motion at para. 4. See also Defendants' objection (document no. 18-1) at 2.
2 served. The plaintiff properly invoked that right, and the
district court had no power to condition its dismissal.").
In opposing plaintiff's right to voluntarily dismiss his
claims without prejudice, defendants assert that the "fact that
the defendants' motion to dismiss is, in the alternative, a
motion for summary judgment, takes Mr. Hughes' request for
voluntary dismissal out of the realm of Rule 41( a ) (1)."
Defendants' memorandum (document no. 18-1) at 2. The court
disagrees.
In addressing the arguments advanced by defendants, it is,
perhaps, best to begin with the factual and legal issues not in
dispute. First, defendants did not file an answer to plaintiff's
complaint. Second, the filing of 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 has 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. Here, defendants do not contend their motion was converted to a motion for summary judgment, or that it should be treated as an answer.
3 In re Bath & Kitchen Fixtures Antitrust Litiq., 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). Finally, while defendants' memorandum
mentions that the court has discretion to convert such a motion
into one for summary judgment, the court did not exercise that
discretion. See generally Buck v. American Airlines, Inc., 476
F.3d 29, 38 (1st Cir. 2007) (noting that "conversion is wholly
discretionary with the district court"); Beddall v. State St.
Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) ("the
conversion of a Rule 12(b)(6) motion into a Rule 56 motion is a
matter quintessentially within the purview of the district
court's sound discretion.").
Accordingly, plaintiff cannot unilaterally withdraw his
complaint (without prejudice) only if defendants' pending
dispositive motion qualifies as a motion for summary judgment.
See, e.g., Universidad Cent. Del Caribe, 760 F.2d 14, 19 (1st
Cir. 1985) ("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
4 4 1 (a)(1)(A)(i) .") (quoting D.C. Electronics, Inc. v. Nartron
Corp., 511 F.2d 294, 298 (6th Cir. 1975) ) . Given the particular
circumstances of this case, and the manner in which defendants
argued their motion, the court concludes that, despite its
ambiguous caption, defendants' motion is one to dismiss.
The relief defendants sought through the motion was
dismissal for failure to state a claim, see Fed. R. Civ. P.
12(b)(6), the standard of review they invoked pertains to
dismissals under Rule 12(b)(6), see defendants' memorandum
(document no. 13) at 2, and defendants' memorandum repeatedly
references precedent for the proposition that plaintiff's various
claims should be dismissed for failure to state a claim.
Additionally, as noted above, the court did not convert
defendants' motion to one for summary judgment. Finally, the
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Hughes v. Standard Hardware 10-CV-207-SM 10/04/10 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Frederick A. Hughes, Plaintiff
v. Civil No. lO-cv-207-SM Opinion No. 2 010 DNH 174 Standard Hardware Distributors, Inc.; Bradford Geer; Robert Lachance; Joan Varney; Edward Cherneskv; Charles Colletta; and Richard Edmunds, Sr., Defendants
O R D E R
In March of this year, pro se plaintiff, Frederick Hughes,
brought suit against his former employer and several individual
defendants. Hughes claims he was wrongfully terminated from his
employment. He says defendants discriminated against him based
upon his age and an alleged disability. Defendants deny any
wrongdoing and say Hughes was fired for a single reason: he
threatened "to get a '45' (handgun) and blow his [supervisor's]
head off," Exhibit 1 to Plaintiff's Complaint, Merrimack Police
Department, Officer's Formal Report (document no. 1-1) at 2.
Hughes admits he made that comment.
In lieu of filing an answer, defendants filed a "Motion to
Dismiss the Plaintiff's Complaint, or in the Alternative, for
Summary Judgment" (document no. 13). Plaintiff responded by
filing a "Rule 41(a)(2) Request for Voluntary Dismissal Without Prejudice" (document no. 17).1 For the reasons set forth below,
plaintiff's complaint is dismissed without prejudice, pursuant to
Rule 41(a)(1). Defendants' motion to dismiss is denied as moot.
Discussion
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; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
Fed. R. Civ. P. 41(a)(1)(A) (emphasis supplied). 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 v. Liason
Comm, on Medical Educ., 760 F.2d 14, 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
1 As defendants acknowledge, notwithstanding the caption to plaintiff's motion, he actually invokes the provisions of Rule 41(a)(1), not (a)(2), in support of his request to voluntarily dismiss his claims without prejudice. See Plaintiff's motion at para. 4. See also Defendants' objection (document no. 18-1) at 2.
2 served. The plaintiff properly invoked that right, and the
district court had no power to condition its dismissal.").
In opposing plaintiff's right to voluntarily dismiss his
claims without prejudice, defendants assert that the "fact that
the defendants' motion to dismiss is, in the alternative, a
motion for summary judgment, takes Mr. Hughes' request for
voluntary dismissal out of the realm of Rule 41( a ) (1)."
Defendants' memorandum (document no. 18-1) at 2. The court
disagrees.
In addressing the arguments advanced by defendants, it is,
perhaps, best to begin with the factual and legal issues not in
dispute. First, defendants did not file an answer to plaintiff's
complaint. Second, the filing of 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 has 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. Here, defendants do not contend their motion was converted to a motion for summary judgment, or that it should be treated as an answer.
3 In re Bath & Kitchen Fixtures Antitrust Litiq., 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). Finally, while defendants' memorandum
mentions that the court has discretion to convert such a motion
into one for summary judgment, the court did not exercise that
discretion. See generally Buck v. American Airlines, Inc., 476
F.3d 29, 38 (1st Cir. 2007) (noting that "conversion is wholly
discretionary with the district court"); Beddall v. State St.
Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) ("the
conversion of a Rule 12(b)(6) motion into a Rule 56 motion is a
matter quintessentially within the purview of the district
court's sound discretion.").
Accordingly, plaintiff cannot unilaterally withdraw his
complaint (without prejudice) only if defendants' pending
dispositive motion qualifies as a motion for summary judgment.
See, e.g., Universidad Cent. Del Caribe, 760 F.2d 14, 19 (1st
Cir. 1985) ("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
4 4 1 (a)(1)(A)(i) .") (quoting D.C. Electronics, Inc. v. Nartron
Corp., 511 F.2d 294, 298 (6th Cir. 1975) ) . Given the particular
circumstances of this case, and the manner in which defendants
argued their motion, the court concludes that, despite its
ambiguous caption, defendants' motion is one to dismiss.
The relief defendants sought through the motion was
dismissal for failure to state a claim, see Fed. R. Civ. P.
12(b)(6), the standard of review they invoked pertains to
dismissals under Rule 12(b)(6), see defendants' memorandum
(document no. 13) at 2, and defendants' memorandum repeatedly
references precedent for the proposition that plaintiff's various
claims should be dismissed for failure to state a claim.
Additionally, as noted above, the court did not convert
defendants' motion to one for summary judgment. Finally, the
relief defendants sought in their prayer for relief was plainly
dismissal of plaintiff's claims, rather than judgment as a matter
of law.
For all of the foregoing reasons, the defendants respectfully request that this Court dismiss Mr. Hughes' Complaint in its entirety as failing to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)( 6 ) . . . . Even giving Mr. Hughes the benefit of all reasonable inferences to be derived from his allegations, his Complaint fails to establish any entitlement to relief.
Defendants' memorandum at 14.
5 In light of all those factors, the court concludes that
defendants' motion is one to dismiss plaintiff's claims under
Rule 1 2 (b)(6). See generally Universidad Cent. Del Caribe, 760
F.2d at 17 (noting that "nothing in the record . . . supports the
contention that the district court treated the Rule 12(b) (6)
motion as a motion for summary judgment," and, given the manner
in which the motion was presented and argued, defendant "clearly
intended that the motion be one for dismissal."). Accordingly,
the filing of defendants' motion did not preclude plaintiff from
voluntarily dismissing his claims under Rule 41(a) (1) .
Conclusion
The court is not unsympathetic to defendants' concern that,
given certain comments by plaintiff, he may be engaged in what
might plausibly be viewed as "recreational litigation." And,
because he has voluntarily dismissed his claims without
prejudice, it is possible that he may pursue those or similar
claims in state court. But, "[i]n light of the plain language of
Rule 41(a)(1), [defendants] cannot complain that the plaintiff
exercised [his] prerogative under the rule when [defendants]
could have prevented voluntary dismissal simply by answering the
complaint." Manze, 817 F.2d at 1066. Had defendants' answered
plaintiff's complaint, raised its failure to state a claim as a
defense, and then moved for judgment on the pleadings, see Fed.
6 R. Civ. P. 12(c), plaintiff would not have been able to avail
himself of the provisions of Rule 41( a ) (1).
For the foregoing reasons, plaintiff's complaint is
dismissed without prejudice. Defendants' motion to dismiss
(document no. 13) is denied as moot. The Clerk of Court shall
close the case.
SO ORDERED.
Streven J./McAuliffe Chief Judge
October 4, 2010
cc: Frederick A. Hughes, pro se Jennifer L. Rousseau, Esq.