Mitchell Ellis Products, Inc. v. Bouldin & Lawson, LLC et al

Filing 39

Order re: 38 Notice of Voluntary Dismissal, construed as a motion. Responses due by 12/16/2014, Replies due by 12/23/2014. Signed by Chief Judge William H. Steele on 12/9/2014. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MITCHELL ELLIS PRODUCTS, INC.,)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 14-0194-WS-N
)
BOULDIN & LAWSON, LLC,
)
)
Defendant.
)
ORDER
The plaintiff has filed a notice of voluntary dismissal. (Doc. 38). The
plaintiff understands that the dismissal is effective on filing because the defendant
has not filed a motion for summary judgment or an answer to the amended
complaint. The plaintiff is incorrect.
“[T]he plaintiff may dismiss an action without a court order by filing … 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)(i). The pleading that ends
a plaintiff’s right to unilaterally dismiss is an answer to the original complaint, and
“a plaintiff cannot supersede the cutting off its right to give notice of voluntary
dismissal by filing an amended complaint after an answer or motion for summary
judgment has been filed by the defendant.” Universidad Central del Caribe, Inc.
v. Liaison Committee on Medical Education, 760 F.2d 14, 18 (1st Cir. 1985);
accord Armstrong v. Frostie Co., 453 F.2d 914, 916 (4th Cir. 1971); 9 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 2363 (4th online ed.)
(“Multiple courts have held that an answer to the plaintiff’s original complaint is
sufficient to preclude dismissal by notice even though the defendant has not
submitted an answer to the plaintiff’s amended complaint.”). This only makes
sense, since “[t]he rule is designed to permit a disengagement of the parties at the

behest of the plaintiff only in the early stages of a suit, before the defendant has
expended time and effort in the preparation of his case,” and the filing of an
amended complaint “increase[s] rather than nullifie[s] [the defendant’s] burden.”
Armstrong, 453 F.2d at 916.
The plaintiff has cited no authority in support of its position, and the
Eleventh Circuit has at least implicitly rejected it. In Hunt v. Hawthorne
Associates, Inc., 119 F.3d 888 (11th Cir. 1997), the plaintiff filed an amended
complaint dropping four of the original defendants. As to the three defendants that
had not answered the original complaint, the plaintiff needed no motion and order
under Rule 21. But the fourth defendant (“Eastern”), which had answered the
original complaint, could not be dropped absent such a motion and order. The
plaintiff “was free, however, to obtain Eastern’s dismissal from the case by filing
with the court a stipulation under Fed.R.Civ.P. 41(a)(1)(ii).” Id. at 903 & n.42.
Notably, the Court did not say the plaintiff could dismiss Eastern unilaterally
under Rule 41(a)(1)(A)(i).
Even could a plaintiff revive a right to unilaterally dismiss by the mere
expedient of filing an amended complaint, the plaintiff has not done so. All it has
done is file a motion for leave to file an amended complaint, (Doc. 36), which
motion has not been granted and which does not even become ripe until tomorrow.
(Doc. 37).
In summary, the plaintiff cannot dismiss its action without either a
stipulation signed by all parties or an order of Court permitting the dismissal. Fed.
R. Civ. P. 41(a)(1)(A)(ii), (2). The Court construes the plaintiff’s filing as a
motion for such relief. The defendant is ordered to file and serve its response to
the plaintiff’s motion on or before December 16, 2014. The defendant’s response
shall address the fate of its “counter complaint,” (Doc. 7 at 6-18), should the
plaintiff’s motion be granted. See Fed. R. Civ. P. 41(a)(2) (“If a defendant has
pleaded a counterclaim before being served with the plaintiff’s motion to dismiss,
the action may be dismissed over the defendant’s objection only if the
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counterclaim can remain pending for independent adjudication.”). The plaintiff is
ordered to file and serve any reply on or before December 23, 2014. The Court
will take the plaintiff’s motion under submission on December 23, 2014.
DONE and ORDERED this 9th day of December, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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