Powell v. Wal-Mart Stores East, LP et al

Filing 14

NOTICE AND ORDER that the Clerk is DIRECTED to terminate the Motion to Dismiss 13 filed by Carissa Powell as an active motion (the Court is treating the motion as a notice of dismissal of all claims against defendant Orstadt) and is to terminate Orstadt as an active party to this action. MOTION to Dismiss 2 treated as a MOTION for Summary Judgment is MOOT. Signed by Magistrate Judge Katherine P. Nelson on 3/1/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARISSA POWELL,
Plaintiff,

)
)
)
v.
)
)
WAL-MART STORES EAST, LP, and )
CHRISTOPHER ORSTADT,
)
Defendants.
)

CIVIL ACTION NO. 1:18-00018-N

NOTICE AND ORDER

This action is before the Court on the Plaintiff’s motion to voluntarily
dismiss Defendant Christopher Orstadt under Federal Rule of Civil Procedure
41(a)(2), which requests that “this Court to enter an Order granting her Motion
to Dismiss…Orstadt from this case and dismissing all claims against him,
without prejudice.”

(Doc. 13).

Generally, “[t]he district court enjoys broad

discretion in determining whether to allow a voluntary dismissal under Rule
41(a)(2).”

Pontenberg v. Boston Sci. Corp., 252 F.3d 1253, 1255 (11th Cir. 2001)

(per curiam).

However, some courts of appeal have held that “if there is reason

for a court to believe that it does not have subject matter jurisdiction, the court
must address that issue before ruling on a motion for voluntary dismissal[,
because] without subject matter jurisdiction, a district court c[an]not properly
engage in the balancing process and exercise of discretion required by Rule
41(a)(2).”

Walter Kidde Portable Equip., Inc. v. Universal Sec. Instruments, Inc.,

479 F.3d 1330, 1342 (Fed. Cir. 2007) (citing Shortt v. Richlands Mall Assocs.,

Inc., 922 F.2d 836 (4th Cir. 1990) (Table), 1990 WL 207354, at *4 (4th Cir. 1990)
(per curiam) (unpublished)).1
This case was removed from state court under 28 U.S.C. § 1441(a), with
diversity of citizenship under 28 U.S.C. § 1332(a) alleged as the sole basis for the
Court’s subject matter jurisdiction.

However, “[d]iversity jurisdiction requires

complete diversity; every plaintiff must be diverse from every defendant.”
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998).

The

removing defendant admits that Orstadt, like the Plaintiff, was a citizen of
Alabama at the time of removal, but argues that Orstadt’s citizenship should be
disregarded because he has been fraudulently joined.

At present, the Court has

made no ruling on the issue of fraudulent joinder, and the existence of complete
diversity at the time of removal is in question.
Nevertheless, the undersigned notes that Orstadt has not yet served either
an answer or a motion for summary judgment in this action; Federal Rule of Civil
Procedure 41(a)(1)(A)(i) permits a plaintiff to dismiss an opposing party without
See also Harden v. Field Mem'l Cmty. Hosp., 265 F. App'x 405, 408 (5th Cir.
2008) (per curiam) (unpublished) (“Here, the district court had good reason to be
concerned about its subject matter jurisdiction. Harden disputed the court's
jurisdiction by moving to remand. Consequently, if the district court had
considered Harden's motion to dismiss Quorum under Rule 41(a)(2) before
deciding Harden's remand motion, it would have run the risk of acting without
jurisdiction. Given these circumstances, we find that the district court did not err
by first resolving its jurisdictional concerns by ruling on Harden's motion to
remand before ruling on her Rule 41(a)(2) motion. See Walter Kidde Portable
Equip., Inc. v. Universal Sec. Instruments, Inc., 479 F.3d 1330, 1342 (Fed.
Cir.2007) (finding that the district court erred when it granted the plaintiff's
motion to dismiss under Rule 41(a)(2) without first resolving its subject matter
jurisdiction concerns).”).
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a court order by filing a notice of dismissal “before the opposing party serves an
answer or a motion for summary judgment.”2 See Klay v. United Healthgroup,
Inc., 376 F.3d 1092, 1106 (11th Cir. 2004) (“Rule 41 allows a plaintiff to dismiss
all of his claims against a particular defendant…”).

“It is well established that

Rule 41(a)(1)[(A)](i) grants a plaintiff an unconditional right to dismiss his
complaint by notice and without an order of the court at any time prior to the
defendant’s service of an answer or a motion for summary judgment. The
dismissal is effective immediately upon the filing of a written notice of dismissal,
and no subsequent court order is required. The fact that a notice of dismissal
is styled ‘motion to dismiss’ rather than ‘notice of dismissal’ is without
consequence.”

Matthews v. Gaither, 902 F.2d 877, 880 (11th Cir. 1990) (per

curiam) (emphasis added).

Accordingly, the Court treats Plaintiff’s Rule

41(a)(2) motion (Doc. 13) as a Rule 41(a)(1)(A)(i) notice of dismissal of all claims
against Defendant Orstadt without prejudice, effective immediately upon its
filing.
Accordingly, the Clerk of Court is DIRECTED to terminate the Plaintiff’s
filing (Doc. 13) as an active motion, and to terminate Orstadt as an active party
to this action.

Orstadt’s Rule 12(b)(6) motion to dismiss (Doc. 2), treated as a

Orstadt has filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) (Doc. 2), which the Court has treated as a motion for summary judgment
under the procedure in Rule 12(d) (see Doc. 2). The undersigned does not deem
that motion to be a motion for summary judgment served by Orstadt; thus, the
Plaintiff’s right to voluntarily dismiss him under Rule 41(a)(1)(A)(i) has not been
extinguished.
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motion for summary judgment (see Doc. 12), is therefore MOOT.3
DONE and ORDERED this the 1st day of March 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

Under S.D. Ala. GenLR 73(c) and 28 U.S.C. § 636(c), this case has been
randomly assigned to the undersigned Magistrate Judge for all purposes,
including entry of a final judgment, as set out in the Notice of Assignment to
United States Magistrate Judge for Trial entered January 19, 2018. (Doc. 7).
The Notice of Assignment informs the parties that they “have the right to have
this action reassigned to a United States District Judge for trial and disposition.”
Inasmuch as no party, to date, has requested reassignment of this case to a
District Judge, there presently exists implicit consent to the undersigned
conducting all proceedings in this case. See Chambless v. Louisiana-Pac. Corp.,
481 F.3d 1345, 1350 (11th Cir. 2007) (“[T]he Supreme Court held in Roell v.
Withrow, 538 U.S. 580, 123 S. Ct. 1696, 155 L. Ed. 2d 775 (2003), that consent to
a magistrate judge's jurisdiction can be inferred from a party’s conduct during
litigation. Id. at 582, 123 S. Ct. 1696. The Court refused to adopt a bright-line
rule requiring express consent, instead accepting implied consent ‘where ... the
litigant or counsel was made aware of the need for consent and the right to refuse
it, and still voluntarily appeared to try the case before the Magistrate Judge.’
Id. at 589–90, 123 S. Ct. 1696.”).
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