Grady v. Harris

Filing 12

ORDER denying 10 Motion to Strike Voluntary Dismissal and Reinstate Complaint and add Defendants; denying 11 Motion Particularize Complaint. Signed by Chief Judge Frank D. Whitney on 7/8/2018. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:17-cv-184-FDW
BOBBY RAY GRADY,

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Plaintiff,
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vs.
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SCOTT S. HARRIS,
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Defendant.
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__________________________________________)

ORDER

THIS MATTER is before the Court on the pro se Plaintiff’s “Motion to Strike Voluntary
Dismissal and Reinstate Complaint [and] Motion to Add Defendants to Complaint,” (Doc. No.
10), and “Motion to Particularize Complaint,” (Doc. No. 11).
Plaintiff filed a Complaint pursuant to the Federal Tort Claims Act against the Clerk of the
United States Supreme Court, Scott S. Harris, on October 9, 2017, (Doc. No. 1). His motion to
proceed in forma pauperis was granted on November 20, 2017. (Doc. No. 6). On December 18,
2017, he filed a “Motion to Dismiss” that the Clerk of Court docketed as a Notice of Voluntary
Dismissal on December 27, 2017, and the Clerk terminated this case the same day. (Doc. No. 7).
Plaintiff mailed a Letter to the Court that was docketed on February 15, 2018, that was construed
as a Motion to Vacate the Filing Fee. (Doc. No. 8). The Court denied the Motion on February 27,
2018. (Doc. No. 9).
Plaintiff has now filed the instant Motions seeking to reopen the case, reinstate the
Complaint, and permit him to amend and add parties. (Doc. Nos. 10, 11).
Under Rule 41(a)(1)(i), a plaintiff may voluntarily dismiss an action without a court order
by filing a notice of dismissal any time before the adverse party serves him with an answer or a
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motion for summary judgment, whichever occurs first. See Fed. R. Civ. P. 41(a)(1)(i). The
dismissal is without prejudice unless the notice of dismissal states otherwise. Fed. R. Civ. P.
41(a)(1)(B).
“A voluntary dismissal under Rule 41(a)(1)(i) ‘is available as 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) (quoting
Marex Titanic, Inc. v. The Wrecked & Abandoned Vessel, 2 F.3d 544, 546 (4th Cir. 1993) (citations
omitted)). A dismissal without prejudice “operates to leave the parties as if no action had been
brought at all.” In re Matthews, 395 F.3d at 480 (quoting Dove v. CODESCO, 569 F.2d 807, 809
n. 3 (4th Cir. 1978)). Thus, “after an action is voluntarily dismissed without prejudice, the court
lacks authority to conduct further proceedings on the merits.” In re Matthews, 395 F.3d at 480-481
(citing Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1049 (9th Cir. 2001); Foss
v. Fed. Intermediate Credit Bank of St. Paul, 808 F.2d 657, 660 (8th Cir. 1986)).
In other words, the effect of a voluntary dismissal without prejudice under Rule 41(a)(1)(i)
is that the district court is deprived of jurisdiction over the action. See Jones, Blechman, Woltz &
Kelly, PC v. Babakaeva, 375 Fed. Appx. 349, 350 (4th Cir. 2010) (unpublished) (stating the district
court was divested of jurisdiction when the action was terminated by the filing of a motion for
voluntary dismissal pursuant to Rule 41(a)(1)(A)(i) (citing In re Matthews, 395 F.3d at 480; Marex
Titanic, Inc., 2 F.3d at 546)).
At the moment Plaintiff filed the notice of voluntary dismissal, the case was terminated
and this court was divested of jurisdiction. See Jones, 375 Fed. Appx. at 350; Marex Titanic, 2
F.3d at 546. To proceed with his claims, Plaintiff must file a new action.
IT IS THEREFORE ORDERED that:
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Plaintiff’s “Motion to Strike Voluntary Dismissal and Reinstate Complaint [and]
Motion to Add Defendants to Complaint,” (Doc. No. 10), and “Motion to
Particularize Complaint,” (Doc. No. 11), are DENIED.

Signed: July 8, 2018

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