Pelczar v. Pelczar et al
MEMORANDUM AND ORDER: Before the Court is Defendant Doreen Pelczar's ("Defendant") request to vacate Plaintiff's voluntary dismissal of this case without prejudice and to instead grant Defendant's motion for judgment on the pleadings. For the reasons discussed below, Defendant's request is denied. (See attachment for full details). Ordered by Judge Carol Bagley Amon on 7/19/2017. (Basnight, Jasmine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JAMES FREDRIC PELCZAR,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
16-CV-55 (CBA) (LB)
-againstDOREEN M. PELCZAR,
AMON, United States District Judge:
Before the Court is Defendant Doreen Pelczar's ("Defendant") request to vacate Plaintiis
voluntary dismissal of this case without prejudice and to instead grant Defendant's motion for
judgment on the pleadings. For the reasons discussed below, Defendant's request is denied.
In this case arising out of the disposition of his parent's property after their death, pro
Plaintiff James Pelczar sued his sister Doreen Pelczar, along with a number of attorneys wno
represented Defendant before the probate court, alleging that their actions deprived him of his right
to inherit the property, in violation of 42 U.S.C § 1982. (See D.E. # I
~~ 16-19, 50.)
Defendants filed requests for a pre motion conference to dismiss, (D.E. # 7, 9, 11), which in pt
articulated that Plaintiff failed to state a claim under § 1982, Plaintiff amended his complaiT
dismissing the attorney defendants and asserting only a claim for wrongful conversion agaiit
Defendant, (see D.E. # 14, 16; D.E. dated February 4, 2016). On March 4, 2016, Defendant filr
and sent Plaintiff a notice of motion and her brief in support of her motion for judgment on tme
pleadings. (See D.E. # 17.) After Defendant's brief was sent to Plaintiff, but before the motijn
was fully briefed, Plaintiff on March 28, 2016 filed a notice of voluntary dismissal under FedeL
Rule of Civil Procedure 41 (a)( 1)(A)(i), dismissing the case against Defendant without prejudij'
(D.E. # 19 at 1-2.) The Clerk of Court accordingly terminated Defendant and closed the car
Nearly two weeks later, on April 13, 2016, Defendant filed the fully briefed motion for judgment
on the pleadings with the Court, which included-in the reply brief.-a request that the Court "Jo
further than merely permit dismissal without prejudice" and instead dismiss with prejudice. (D.E.
# 20 ~ 4.) The Court construes this as a request to vacate Plaintiffs voluntary dismissal.
Pursuant to Rule 41 (a)(I )(A)( i), a ''plaintiff may dismiss an action without a court order
filing ... a notice of dismissal before the opposing party serves either an answer or a motion for
summary judgment." The Second Circuit has explained that this rule has the "important purpos1"
of "establishing a bright-line test marking the termination of a plaintiffs otherwise unfettered rigfut
voluntarily and unilaterally to dismiss an action." Thorp v. Scarne, 599 F.2d 1169, 1175 (2d Cit
1979). The Court in Thorp accordingly held that, save for a narrow exception clearly nJt
implicated here for "extreme" cases where the merits of the case had been squarely and
brought before the court prior to the filing of either the answer or motion for summary judgment
"notices of dismissal filed in conformance with the explicit requirements of [Rule 41 (a)( 1)(A)(iJ]
are not subject to vacatur." Id. at 1176.
Defendant's motion inadequately addresses how this Court could, in the absence of
Defendant filing an answer or motion for summary judgment, vacate plaintiff's voluntary dismisst
filed in conformance with Rule 41. The one argument that Defendant raises for the first time in
her reply brief.-and unsupported by any case law or citation to the record-is that because thl
papers filed by both parties regarding the motion allegedly included documents outside thl
pleadings, ''the court can consider this matter as a motion for summary judgement," which woul I
render plaintiff's voluntary dismissal improper. (D.E. # 20 ~ 7.) Indeed, although Defendant does
not cite this case, the Second Circuit in Yosef v. Passamaquoddy Tribe, 876 F.2d 283 (2d Cir.
1989), overruled on other grounds, Chemiakin v. Yefimov, 932 F.2d 124, 129 (2d Cir. 1991 ), her
that "where a 12(b)(6) motion ripens into one for summary judgment, the right to voluntary
dismissal is extinguished at the time the motion is served." Id. at 286. In Yosef, after the plaintir
filed a notice of voluntary dismissal, the district court nonetheless rendered an opinion on tne
motion to dismiss that had been previously filed and which had included matters outside tJe
pleadings. See id. On appeal, the Second Circuit explained that under what was then Federal Rule
of Civil Procedure l 2(b ), if "matters outside the pleadings are presented to the court and Jt
excluded, the motion 'shall be treated as one for summary judgment."' Id. The Second Circlt
then explicitly noted that "[t]hese submissions were not excluded by the [district] court" and st,
given the abovementioned provision in Rule 12(b), the Second Circuit found it "appropriate
treat the motion to dismiss under Rule 12(b)(6) as one for summary judgment." Id.
By contrast, this Court has never ruled on Defendant's motion for judgment on tHe
pleadings, nor given the parties notice of an intent to convert the motion to one for summruhr
judgment. See Fed. R. Civ. P. 12(d) (where the district court plans to convert a Rule 12(c) motiol
into a motion for summary judgment, "[a]II parties must be given a reasonable opportunity jo
present all the material that is pertinent to the motion").
Indeed, Plaintiffs opposition
Defendant's motion was not due until April 4, 2016-a week after Plaintiff filed his notice of
dismissal-and therefore even if the Court were theoretically on notice that Defendant was filif
a motion to dismiss or that it included material outside the pleadings, the Court could not haT
known whether Plaintiff was likewise including extraneous materials and there was no fullty
briefed motion pending before the Court. (See D.E. dated February 4, 2016.)
This Court h [
accordingly never relied upon the matters outside the pleadings in making any decision 0r
otherwise failed to exclude those documents from its consideration of the motion, because thele
was no complete motion before the Court that the Court could even have considered. See Premilr
Fabrics, Inc. v. Woodland Trading Inc., 42 F. Supp. 3d 549, 552 (S.D.N.Y. 2014) ("Even if
[extraneous materials] could have been considered only by conversion of the motion, the moti1n
had not been so converted. Thus, no motion for summary judgment had been filed, and plaintils
right to discontinue without prejudice by notice remained extant at the time plaintiff's notice wr
filed."); Activox, Inc. v. Envirotech Com., 85 F.R.D. 132, 134 (S.D.N.Y. 19.80) (rejecting
defendant's contention that upon the filing of matters outside the pleadings "their motion
dismiss the complaint is automatically converted to a motion for summary judgment," and rulif
that "at the time plaintiff filed its voluntary dismissal, defendants' motion could not have beer
converted into a motion for summary judgment, since the Court had not even examined that motion
to determine whether the affidavits would be excluded from consideration, and since plaintiff
not been given the opportunity to present all material pertinent to a summary judgment motion as
required by Rule 12(b)(6)"); see also Berthold Types Ltd. v. Adobe Sys., 242 F.3d 772, 776
Cir. 200 I) ("A motion to dismiss must be treated as a motion for summary judgment if the judgj
considers matters outside the complaint, but the judge may elect to treat a motion as what it
purports to be and disregard the additional papers. [Plaintiff] filed its notice of dismissal undt
Rule 41 (a)( I )(i) before the district judge could decide whether to consider [Defendant's] additioni
submissions . ... [T]herefore, [Defendant] had filed neither an answer nor a motion for summa1
Other circuits have likewise concluded that a Rule 12 motion does not spontaneously cover
to a Rule 56 motion for summary judgment upon a party's filing of extraneous materials, but rathe
must await the court's decision of whether to consider or exclude those materials. See Swedbe g
v. Marotzke, 339 F.3d 1139, 1146 (9th Cir. 2003); Finley Lines Joint Protective Bd. Unit 200
Norfolk S. Corp., 109 F.3d 993, 995-97 (4th Cir. 1997); Aamot v. Kassel, 1F.3d441, 444-45 (6th
Cir. 1993); see also Moore's Federal Practice - Civil § 41.33 (2017) ("The better view is that a
formal, court-ordered conversion is required: thus, a notice of dismissal may be vacated only f
filed after the time that the court has actually reviewed the motion to dismiss, determined whethr
to include or exclude the extraneous matters, notified the parties of the conversion to Rule 56, anr
expressly afforded the parties a reasonable opportunity to present materials relevant to a motion
for summary judgment."). But see Kurkowski v. Volcker, 819 F.2d 201, 203 (8th Cir.
("Under Fed.R.Civ.P. 12(b), a defendant's motion to dismiss is transformed into a motion
summary judgment when matters outside the pleadings are also submitted to the court."). Th!
motion for judgment on the pleadings having never "ripened" into a motion for summary
judgment, there is no cause for retroactively changing the motion that was actually filed undet
Rule 12(c), and which this Court never considered, into a motion under Rule 56.
This is not to say that the Federal Rules leave Defendant at the mercy of Plaintiff's abilit1
to file suit in federal court, force her to incur expenses, and then dismiss before she can answer o~
move for summary judgment. Rule 41 (d) states that "[i]f a plaintiff who previously dismissed
action in any court files an action based on or including the same claim against the same defendant,
the court ( 1) may order the plaintiff to pay all or part of the costs of that previous action; and (2)
may stay the proceedings until the plaintiff has complied." Fed. R. Civ. P. 41. This rule "serves
the broader purpose of penalizing a plaintiff for re-filing the very suit he has previously dismissed,"
Delvalle v. Cedric Kushner Promotions, Ltd., No. OO-CV-5688 (JSR), 2000 WL 1915808, at *1
(S.D.N.Y. Jan. 9, 2000), and has been interpreted in this Circuit to include payment of attorney's
fees as "compensation for work done in the first action that cannot be used in a second existing or
contemplated action," Hi ntergerger v. Catholic Health Sys., No. 08-CY-952 (WMS), 2012 WL
1965435, at * 1 (W.D.N. Y. May 31, 2012). See a lso New Phone Co. v. N. Y. City Dep' t of Info.
Tech. & Telecommunications, No. 06-CV-3529 (JG) (KAM), 2007 WL 2908110, at * 17
(E.D.N .Y. Oct. 5, 2007) ("Although Rule 4l(d) does not exp licit ly prov ide that attorneys' fees
may be awarded, the weight of authority in this Circuit supports such an award. "). The Court
hi gh li ghts this rule to put Plaintiff, who is proceeding pro se, on notice of the potential
consequences of re filing the same or "substantially similar causes of action, in this or any other
court." BI-I Seven, LLC v. Ambit Energy. L.P. , No. l l -CY-2483 (ARR), 2012 WL 4445825, at
*3 (E.D.N.Y. Sept. 25, 20 12). Having done so, the Court denies Defendant's request to vacate
Plainti ffs voluntary dismissal of this action.
Brooklyn, New York
s/ Carol B Amon
C"aro l Bagle/Am
United States District Judge
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