Howard et al v. Bank of America, N.A. et al

Filing 61

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff Derrick Howards motion for leave to dismiss is construed as a notice of voluntary dismissal under Rule 41(a)(1), and this case is dismissed without prejudice pursuant to that notice. Signed by Honorable Catherine D. Perry on 6/28/2011. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DERRICK HOWARD,
Plaintiff,
vs.
BANK OF AMERICA, N.A., et al.,
Defendants.

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Case No. 4:10CV2365 CDP

MEMORANDUM AND ORDER
Pending before me is plaintiff Derrick Howard’s motion for leave to dismiss
this action without prejudice under Rule 41(a)(2), Fed. R. Civ. P. Several
defendants have opposed the motion, requesting that dismissal be with prejudice
because they will be harmed if Howard is allowed to refile. No defendant has
filed an answer or a motion for summary judgment. Instead, numerous defendants
have moved to dismiss Howard’s complaint for lack of subject-matter jurisdiction
and for failure to state a claim for relief.
Under Rule 41(a)(1), a plaintiff may voluntarily dismiss an action without
prejudice and without leave of Court as of right if no defendant has filed an
answer or a motion for summary judgment. See Fed. R. Civ. P. 41(a)(1)(A)(i).
This answer or motion for summary judgment requirement is strictly construed
within the Eighth Circuit. See, e.g., Safeguard Bus. Sys., Inc. v. Hoeffel, 907 F.2d
861, 863 (8th Cir. 1990) (“Rule 41 provides that the plaintiff loses the right [to

voluntary dismissal] when an answer or a motion for summary judgment is filed.
These two instances have been construed strictly and exclusively.”).
Here, because no defendant has answered Howard’s complaint or filed a
motion for summary judgment, Howard may voluntarily dismiss this action
without leave of Court and without prejudice. Accordingly, I will construe his
motion for leave as a notice of voluntary dismissal, and this case is dismissed
without prejudice pursuant to that notice. See Daughetee v. CHR Hansen, Inc.,
No. C09-4100-MWB, 2011 WL 1043504, at *2 (N.D. Iowa Mar. 17, 2011)
(construing a motion for leave to voluntarily dismiss case as a notice of voluntary
dismissal pursuant to Rule 41(a)(1) because defendant had not filed an answer or a
motion for summary judgment).
Accordingly,
IT IS HEREBY ORDERED that plaintiff Derrick Howard’s motion for
leave to dismiss is construed as a notice of voluntary dismissal under Rule
41(a)(1), and this case is dismissed without prejudice pursuant to that notice.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 28th day of June, 2011.
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