Kyzar et al v. American National Property and Casualty Company

Filing 49

RULING denying 38 Motion to Vacate and Strike Plaintiff's 37 Notice of Dismissal Without Prejudice. This civil action shall be closed by the Clerk of Court without further order of the Court. Signed by Judge Shelly D. Dick on 5/18/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JAMES KYZAR AND ANNE AULDS,
INDIVIDUALLY, AND AS
REPRESENTATIVES OF THE CLASS

CIVIL ACTION

VERSUS

AMERICAN NATIONAL PROPERTY AND
CASUALTY CO.

15-527-SDD-EWD

RULING
Before the Court is Defendant American National Property and Casualty Company
(“ANPAC”)’s Motion to Vacate and Strike Plaintiffs’ Notice of Dismissal Without
Prejudice.1 Plaintiffs, James Kyzar and Anne Aulds, have filed an Opposition to which
ANPAC has file a Reply.2 For the following reasons, the Court denies ANPAC’s Motion
and Plaintiffs’ Notice shall be given effect.
"Dismissal under Rule 41(a)(1) is a matter of right running to the plaintiff and may
not be extinguished or circumscribed by adversary or court."3 “The filing of a notice of
voluntary dismissal under Rule 41(a)(1)(A)(i) is effective immediately and does not require
action by the Court.”4 On January 14, 2016, the date Plaintiffs filed their Notice, there
had been no answer or summary judgment motion filed by ANPAC. Although ANPAC

1

Rec. Doc. 38.
Rec. Doc. 40 and Rec. Doc. 44.
3
Bailey v. Shell W.E. & P Inc., 609 F.3d 710, 719 (5th Cir. 2010).
4
Smith v. Cain, 2015 WL 6022853, *2 (E.D.La. Oct. 14, 2015)(citing Montoya v. FedEx Ground Package
System, Inc., 614 F.3d 145, 148 (5th Cir. 2010)(citing Qureshi v. United States, 600 F.3d 523, 525 (5th Cir.
2010)(explaining that a Fed. R. Civ. P. 41(a)(1)(A)(i) dismissal is “immediately self-effectuating” without any
action by the court)). 
2

1

had filed a Motion to Dismiss with extrinsic evidence which was pending on January 14,
2016, "the mere submission [or service] of extraneous materials does not by itself convert
a Rule 12(b)(6) [or 12(c)] motion into a motion for summary judgment."5 District courts
"enjoy broad discretion in deciding whether to treat a motion to dismiss as a motion for
summary judgment."6

Ultimately, the Court found ANPAC's Motion to be moot.7

Defendant also argues that it will suffer legal prejudice if the Notice is not vacated or
struck from the record, because Plaintiffs will essentially be permitted to forum shop. The
Fifth Circuit in Bechuck v. Home Depot U.S.A., Inc. recently explained that, while "forumshopping is not a trivial concern, 'Rule 41(a)(1) essentially permits forum shopping.'"8 The
Bechuck court further stated: "It is not uncommon for plaintiffs to use voluntary dismissal
to 'secure their preferred forum,’ such as when they seek to undo removal and return to
state court. 'While this may seem distasteful to opposing parties, we have 'consistently
held that Rule 41(a)(1) means what it says ... [and] [d]efendants who desire to prevent
plaintiffs from invoking their unfettered right to dismiss actions under Rule 41(a)(1) may
do so by taking the simple step of filing an answer.'"9 Considering the Fifth Circuit’s
guidance in Bechuck, the Court finds that forum shopping is not the type of legal prejudice
that would prevent Plaintiffs’ Rule 41(a)(1) Notice from taking effect.

5

Williams v. E.I. du Pont de Nemours and Co., 2015 WL 9581824, *2 (M.D.La. Dec. 30, 2015)(quoting U.S.
ex rel. Long v. GSDMldea City, LLC, 798 F.3d 265, 275 (5th Cir. 2015)(quoting Finley Lines Joint Protective
Bd. v. Norfolk S. Corp., 109 F.3d 993, 996 (4th Cir. 1997)).
6
Id.
7
Rec. Doc. 43.
8
Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287, 293 (5th Cir. 2013)(quoting Harvey Specialty &
Supply, Inc. v. Anson Flowline Equip. Inc., 434 F.3d 320, 324 n. 15 (5th Cir. 2005)).
9
Id. (internal citations omitted).

2

Accordingly, the Court hereby denies ANPAC’s Motion to Vacate and Strike
Plaintiffs’ Notice of Dismissal Without Prejudice. This civil action shall be closed by the
Clerk of Court without further order of the Court.10
Signed in Baton Rouge, Louisiana on May 18, 2016. 

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

10

Plaintiffs’ Notice of Dismissal Without Prejudice “itself closes the file … There is not even a perfunctory
order of court closing the file. Its alpha and omega was the doing of the plaintiff[s] alone.” Smith, 2015
WL 6022853, at *3 (quoting American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963)). 

3