United Subcontractors, Inc. v. Simons

Filing 18

ORDER that plaintiff is allowed up to 12 noon today to file a Notice of Withdrawal of Stipulation and, simultaneously, a Motion to Dismiss Pursuant to Rule 41(a)(2) attaching thereto the proposed Consent Order. Signed by District Judge Max O. Cogburn, Jr on 11/08/17. (emw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:17-cv-00243-MOC-DLH
UNITED SUBCONTRACTORS, INC. d/b/a USI
SOUTHERN FOAM,
Plaintiff,
Vs.
MICHAEL C. SIMONS,
Defendant.

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ORDER

THIS MATTER is before the court on plaintiff’s “Stipulation of Dismissal” (#17), to
which is annexed a proposed “Consent Order for Injunctive Relief.” (#17-1). There are a number
of problems with this filing.
In the Rule 41(a)(1)(ii) Stipulation of Dismissal, the plaintiff asks the court to enter the
“Consent Order for Injunctive Relief” and to maintain jurisdiction to enforce that Order. This is
problematic for two reasons: (1) a stipulation of dismissal, once filed, divests this Court of any
jurisdiction as the stipulation terminates the action; and (2) both the Federal Rules of Civil
Procedure and the Local Civil Rules require that any request for Court action be made in the form
of a motion.
First, a voluntary dismissal under Rule 41(a)(1) is “a matter of unconditional right and is
self-executing, i.e., it is effective at the moment the notice is filed with the clerk and no judicial
approval is required.” In re Matthews, 395 F.3d 477, 480 (4th Cir. 2005) (internal quotation marks
omitted). A voluntary dismissal acts as if no action was brought at all. Id. After an action is

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voluntarily dismissed, a court “lacks authority to conduct further proceedings on the merits.” Id.
at 480. Further, a “judgment on the merits that is entered after the plaintiff has filed a proper
41(a)(1) notice of dismissal is indeed void.” Jackson v. United States, 245 Fed. Appx. 258, 259
(4th Cir. 2007) (citation omitted).
Second, any request for relief from the Court must be by motion, LCvR 7.1, inasmuch as
a “Stipulation” or “Notice” does not create a trackable event in ECF that would alert the Court that
action is required. Indeed, had it not been for alert staff, this Stipulation of Dismissal would have
resulted in the Clerk of Court immediately terminating this case.
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Putting those missteps aside, it is clear that the plaintiff seeks a dismissal of this action
subject to certain conditions imposed by the Court. The Court is happy to accommodate that
request, which is governed by Rule 41(a)(2) not Rule 41(a)(1). While Jackson teaches that
jurisdiction to do anything is lacking at this point as a Rule 41(a)(1) dismissal has been filed, the
Court finds that the plaintiff’s filing may well have been inadvertent. By no later than 12 noon
today, plaintiff may file a “Notice of Withdrawal of Stipulation” and, simultaneously, a “Motion
to Dismiss Pursuant to Rule 41(a)(2)” attaching thereto the proposed Consent Order. Plaintiff is
also advised that any proposed Consent Order must be submitted to Chambers via CyberClerk as
provided in the Local Civil Rules.

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ORDER
IT IS, THEREFORE, ORDERED that plaintiff is allowed up to 12 noon today to file a
“Notice of Withdrawal of Stipulation” and, simultaneously, a “Motion to Dismiss Pursuant to Rule
41(a)(2)” attaching thereto the proposed Consent Order.
Signed: November 8, 2017

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