Fernandes v. Briotte et al

Filing 90

Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER regarding 88 Plaintiff's Notice of DismissalPlaintiff therefore has the right to voluntarily dismiss this action without prejudice under Rule 41(A)(1)(a)(i). A final judgment shall therefore issuedismissing this action without prejudice.(Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
WILLIAM M. FERNANDES,
Plaintiff,
v.

CIVIL ACTION NO.
15-12580-ADB

ANDRE BRIOTTE, JR., ET AL.,
Defendants.
MEMORANDUM AND ORDER RE:
PLAINTIFF’S NOTICE OF DISMISSAL
October 19, 2015
BURROUGHS, U.S.D.J.
On September 19, 2015, plaintiff William M. Fernandes filed
a notice to voluntarily dismiss this action without prejudice
under Fed.R.Civ.P. 41(a) (“Rule 41(a)”) or Fed.R.Civ.P. 41(c).
(Docket Entry # 88).1

Rule 41(a)(1)(A)(i) gives a plaintiff the

right to 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.”
41(a)(1)(A)(i).

Fed.R.Civ.P.

Although a number of defendants filed motions to

dismiss (Docket Entry ## 67, 68, 72, 77), such motions do not
extinguish a plaintiff’s right to voluntarily dismiss an action.
See Hall v. Mortgage Electronic Registration Systems, Inc., and
GMAC Mortgage, LLC, 2001 WL 820460, at *1 (D.N.H. March 4, 2011)

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The motion was docketed on October 13, 2015.

(because “‘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’”) (quoting In re Bath & Kitchen Fixtures Antitrust
Litigation, 535 F.3d 161, 166 (3rd Cir. 2008)); see also Adwalls
Media LLC v. Adwalls, LLC., John W. Rowe and Jeffrey D. Zimmer,
2013 WL 375447, at * 1(D.N.J. Jan. 20, 2013) (motion filed under
Fed.R.Civ.P. 12(b)(2) and (3) did not terminate plaintiff’s
ability to file notice of voluntary dismissal).

Likewise, the

oppositions filed by various defendants to a motion to enter a
default filed by plaintiff does not prevent plaintiff from filing
and obtaining a dismissal under Rule 41(a)(1)(A)(ii).

See

Registry System International, Ltd. v. Hamm, 2011 WL 318690, at
*5 (D.Colo. Jan. 28, 2011).

Plaintiff therefore has the right to

voluntarily dismiss this action without prejudice under Rule
41(A)(1)(a)(i).

A final judgment shall therefore issue

dismissing this action without prejudice.

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
United States District Judge

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