J&J Sports Productions, Inc. v. White et al

Filing 12

ORDER acknowledging the dismissal of the case without prejudice as of April 11, 2013, the date of the filing of plaintiffs motion to voluntarily dismiss.The Clerk of the Court is DIRECTED to administratively close this case. Signed by Judge William D. Stiehl on 04/29/2013. (jst)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
J & J SPORTS PRODUCTIONS, INC.,

)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
PHILLIP A. WHITE, JR. individually and
d/b/a PHILTEK ENTERPRISES, LLC,
d/b/a VML LOUNGE, and PHILTEK
ENTERPRISES, LLC d/b/a VML
LOUNGE,
Defendants.

Case No. 12-CV-572-WDS-DGW

ORDER
Before the Court is plaintiff’s motion to voluntarily dismiss this case in its entirety (Doc.
11). Plaintiff requests a dismissal of the action without prejudice up until September 1, 2013, at
which time plaintiff requests that the matter be dismissed with prejudice and with each party to
bear its own costs.
The Seventh Circuit has explained:
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 dismissal 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 district judge to take. Since there was no longer a case
pending 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.
Smith v. Potter, 513 F.3d 781, 782-83 (7th Cir. 2008). The Smith court noted that even though
the Rule 41(a)(1) notice of dismissal was captioned a “motion to voluntarily dismiss the
1

plaintiff’s complaint,” it was, in substance, a Rule 41(a)(1) motion. Id. at 783; see also
Edwards-Brown v. Crete-Monee 201-U School Dist., 491 F.App’x 744 (7th Cir. 2012) (Noting
that “the district court properly construed [plaintiff’s] ‘motion’ for voluntary dismissal as a
notice of voluntary dismissal under Rule 41(a)(1)” and that “[a] voluntary dismissal filed before
any responsive pleading is filed is self-executing and automatically effects dismissal of the case.”
A court order granting any such motion is, therefore, “superfluous” and the effective date of
dismissal of the suit is the date the notice of voluntary dismissal is filed).
In this case, plaintiff’s motion is, substantively, a Rule 41(a)(1) motion, and the
defendants have neither answered nor filed a motion for summary judgment. Accordingly, this
Order simply acknowledges the dismissal of the case without prejudice as of April 11, 2013, the
date of the filing of plaintiff’s motion to voluntarily dismiss (Doc. 11).
The Clerk of the Court is DIRECTED to administratively close this case.

IT IS SO ORDERED.
DATE: April 29, 2013
/s/ WILLIAM D. STIEHL
DISTRICT JUDGE

2