Burton v. Express Scripts, Inc.
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiffs motion to dismiss without prejudice is GRANTED. ECF No. 43 . The Court will enter a separate Order of Dismissal. Signed by District Judge Audrey G. Fleissig on 04/09/2018. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ERICK BURTON, individually and on
behalf of all others similarly situated
EXPRESS SCRIPTS, INC., et al.,
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s motion (ECF No. 43) to voluntarily
dismiss this case without prejudice. Defendants oppose the motion, arguing that Plaintiff
offers no reason for voluntarily dismissing this case. Defendants contend that it is clear
from Plaintiff’s previous filings, and this Court’s prior dismissal without prejudice of
Plaintiff’s complaint for failure to state a claim, that Plaintiff intends to refile this case in
the state court from which it was removed, thus engaging in blatant forum shopping.
Thus, Defendants ask that the dismissal be with prejudice or, at a minimum, that the
Court condition the dismissal on Plaintiff paying Defendants’ costs and attorneys’ fees if
Plaintiff refiles the case in another forum.
As an initial matter, although Plaintiff states that his motion is filed “pursuant to
Rule 41(a)(2) of the Federal Rules of Civil Procedure,” which requires court approval, he
correctly notes in his motion that “defendants have not filed an answer, a counterclaim, or
a motion for summary judgment.” ECF No. 43 at 1. As such, Plaintiff may voluntarily
dismiss this case under Rule 41(a)(1), which provides that a “plaintiff may dismiss an
action without a court order by filing: (i) a notice of dismissal before the opposing party
serves either an answer or a motion for summary judgment . . . .” Fed. R. Civ. P.
Defendants have filed a motion to dismiss pursuant to Rule 12(b)(6), which the
Court granted,1 but as “a 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.” In re Bath & Kitchen Fixtures Antitrust Litig., 535
F.3d 161, 166 (3d Cir. 2008). Only when a motion to dismiss is converted by the district
court into a motion for summary judgment does it bar voluntary dismissal under Rule
41(a)(1). See Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 950 (8th Cir.
1999). No such conversion occurred here.
Under Rule 41(a)(1), the dismissal is without prejudice unless the notice states
otherwise or unless the plaintiff previously dismissed any federal or state court action
based on the same claim. Fed. R. Civ. P. 41(a)(1)(B). Here, Plaintiff’s motion states
that his dismissal is without prejudice, and there is no indication that Plaintiff has
previously dismissed any action based on the same claim. Therefore, the Court lacks
authority to dismiss the case with prejudice. See, e.g., United States v. Dougherty, 486 F.
App’x 621, 621-22 (8th Cir. 2012) (unpublished) (affirming a district court’s grant of the
At oral argument on the motion to dismiss, Plaintiff indicated that he wished to
seek leave to amend his complaint in this Court. In response to this assertion, Defendants
requested a ruling on their motion to dismiss and suggested that if Plaintiff wished to
seek to replead his claims at a later stage, Defendants would address Plaintiff’s arguments
at that time.
government’s motion for voluntary dismissal without prejudice, even after the defendant
filed a Rule 12 motion to dismiss, and reasoning that “because [the defendant] had not yet
filed an answer or summary judgment motion at the time that the government [moved for
a] voluntary dismissal, the dismissal operated as one under [Rule] 41(a)(1)(A)(i) . . . .
Thus, the dismissal did not require a court order, and the court lacked discretion to
dismiss the action with prejudice.”).
Likewise, the Court lacks authority to impose any conditions on the dismissal.
Adams v. USAA Cas. Ins. Co., 863 F.3d 1069, 1078 (8th Cir. 2017). This is true, even if
the voluntarily dismissal was filed merely to escape an adverse decision or to seek a more
favorable forum. Id. at 1079 (agreeing that plaintiffs are “entitled to file a valid Rule
41[(a)(1)] notice of voluntarily dismissal for any reason,” even if it is “to flee the
jurisdiction or the judge”).
Finally, although the parties do not address this issue, the fact that Plaintiff filed
this case as a putative class action also does not affect his right to voluntarily dismiss
without court approval. Rule 41(a)(1)(A) states that voluntary dismissals without a court
order are “subject to” Rule 23(e). Fed. R. Civ. P. 41(a)(1)(A). However, Rule 23(e) was
amended in 2003 to clarify that the procedural requirements for voluntary dismissals of
class actions, including court approval, apply only to “certified” classes. Fed. R. Civ. P.
23(e). “The 2003 amendments to Rule 23(e) intentionally . . . limit[ed] the courts’
supervisory powers over dismissals and voluntary settlements to class actions in which a
class has been certified.” 5 J. Wm. Moore et al., Moore’s Federal Practice § 23.160 (3d
ed. 2017); see also 7B Wright, Miller, & Kane, Federal Practice & Procedure § 1797 (3d
ed. 2017) (“Whatever the justification for those protections, the 2003 amendments make
clear that Rule 23(e) only applies to the ‘claims, issues, or defenses of a certified class.’
Thus, settlements or voluntary dismissals that occur before class certification are outside
the scope of subdivision (e).”). Moreover, “nothing in [the Class Action Fairness Act, 28
U.S.C. § 1332(d), under which this case was removed] altered the 2003 amendment to
Rule 23(e). Adams, 863 F.3d at 1082. Although the Eighth Circuit has not definitively
decided the issue, it has recognized that “the overwhelming majority of courts have held
that when no class has been certified, voluntary dismissal of a putative class action is
governed not by Rule 23 but by Rule 41 . . . .” Id. at 1082-83 (reversing district court’s
sanction of an attorney for voluntarily dismissing a putative class action under Rule
41(a)(1) prior to class certification even though the dismissal was for the purpose of
forum shopping and avoiding an adverse result). The Court agrees with this majority
rule, which is supported by the text of Rule 23(e).
In short, the Court will grant Plaintiff’s voluntary motion to dismiss without
prejudice under Rule 41(a)(1)(A).
IT IS HEREBY ORDERED that Plaintiff’s motion to dismiss without prejudice
is GRANTED. ECF No. 43. The Court will enter a separate Order of Dismissal.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 9th day of April, 2018.
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