Manuel et al v. Gembala et al

Filing 103

ORDER granting 102 Motion for Voluntary Dismissal - Signed by District Judge Louise Wood Flanagan on 11/12/2013. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:10-CV-4-FL
MICHAEL MANUEL and DOROTHY
MANUEL,
Plaintiffs,
v.
MICHAEL MALONE,
Defendant.

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ORDER

This matter is before the court on plaintiffs’ notice of voluntary dismissal with prejudice as
to defendant Michael Malone pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), and motion in the
alternative for voluntary dismissal with prejudice pursuant to Fed. R. Civ. P. 41(a)(2). (DE 102).
The court’s prior order denying plaintiff’s motion for summary judgment, entered October 10, 2013,
sets forth in detail the background and procedural history of this case, which background the court
incorporates herein.
An action may be dismissed voluntarily by the plaintiff without order of the court by filing
a notice of dismissal at any time before service by the adverse party of “an answer or a motion for
summary judgment.” Fed. R.Civ. P. 41(a)(1). Otherwise an action shall not be dismissed on the
plaintiff’s request except upon an order of the court, “on terms that the court considers proper.”
Fed. R.Civ. P. 41(a)(2).
Because defendant filed an answer in this case on August 9, 2010, and because defendant
has participated in defense of this action in a pro se capacity at length, the court declines plaintiffs’
suggestion to allow voluntary dismissal of this action pursuant to Rule 41(a)(1)(A)(i). Rather,

plaintiffs’ notice shall be construed as a motion for voluntary dismissal pursuant to Rule 41(a)(2).
See Armstrong v. Frostie Co., 453 F.2d 914, 916 (4th Cir. 1971) (where defendant answered original
complaint, court properly required motion for voluntary dismissal under Rule 41(a)(2) following
filing of amended complaint).
Generally, a motion for voluntary dismissal under rule 41(a)(2) should not be denied absent
substantial prejudice to the respondent. Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir.
1986). In the context of a putative class action, however, the Fourth Circuit has recognized the need
for a special inquiry by the district court prior to granting a motion for voluntary dismissal. In
particular,
before a District Court may consider or approve a voluntary pre-certification
settlement of an action begun as a class action, it is not compelled to undertake the
laborious process of arriving at a certification determination under 23(c)(1), with all
the burdens such responsibility would entail. Before it may do so, though, the court
must, after a careful hearing, determine what claims are being compromised between
the plaintiff and defendant and whether the settling plaintiff has used the class action
claim for unfair personal aggrandizement in the settlement, with prejudice to absent
class members.
Shelton v. Pargo, Inc. 582 F.2d 1298, 1314 (4th Cir. 1978). Because the voluntary dismissal of only
the named representative’s claims does not bind the purported, uncertified class, the court’s inquiry
is to be focused “primarily on the possibility that the pre-certification compromise is the product of
collusion.” Id. at 1314-15. The court notes that Rule 23(e), after Shelton was decided, was amended
to clarify that pre-certification class actions are not subject to the requirements of that rule. See Fed.
R. Civ. P. 23(e). Moreover, the court finds that the materials previously submitted in this case and
in support of the notice of voluntary dismissal are sufficient for the court to determine the propriety
of the dismissal under the Shelton standard without further proceedings.

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In this case, plaintiffs assert in their notice of voluntary dismissal that the parties “[h]ave
amicably settled the matter.” (Notice at 1). Any members of a putative class asserted by plaintiffs’
counsel in this matter will not be prejudiced by this settlement, because the settlement only applies
to plaintiffs’ individual claims. Pre-certification dismissal does not legally bind absent class
members. See Shelton, 582 F.2d at 1314-15. In light of the nature of the claims asserted and the
court’s prior assessment of the claims asserted, the court finds that plaintiffs have not “used the class
action claim for unfair personal aggrandizement in the settlement” under circumstances of this
particular case. Id. at 1314. Rather, the court is satisfied that the settlement was entered into at arms
length, without collusion, and is the product of an honest assessment of the strength of the claims
and the difficulties with prosecuting this matter further, which difficulties were highlighted in this
court’s prior order.
CONCLUSION
Based on the foregoing, the court construes plaintiffs’ notice of voluntary dismissal with
prejudice under Rul 41(a)(1)(A)(i) as a motion for voluntary dismissal with prejudice under Rule
41(a)(2), and the court GRANTS plaintiff’s motion for voluntary dismissal with prejudice pursuant
to Rule 41(a)(2). Plaintiffs claims against defendant therefore are DISMISSED WITH PREJUDICE.
The clerk is directed to close this case.
So ordered, this the 12th day of November, 2013.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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