Jenkins et al v. Wells Fargo Bank, N.A. et al

Filing 72

ORDER finding as moot 30 Motion to Dismiss for Failure to State a Claim filed by Defendants Jennifer N. Heller, Lerner, Sampson & Rothfuss. Signed by Judge Sandra S Beckwith on 2/17/15. (eh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Dixon F. Jenkins, et al.,
Plaintiffs,
vs.
Wells Fargo Bank, N.A., et al.,
Defendants.

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) Case No. 1:13-CV-771
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ORDER

Pending before the Court is a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure filed by Defendants Lerner, Sampson & Rothfuss and
Jennifer Templeton. Doc. No. 30.
These Defendants, however, did not file an answer to the complaint, nor did they file
a motion for summary judgment. Plaintiffs later filed a notice dismissing their claims
against these Defendants without prejudice pursuant to Rule 41(a)(1) of the Federal Rules
of Civil Procedure. Doc. No. 61. Under Rule 41(a)(1), a plaintiff may voluntarily dismiss
the complaint without a court order until the defendant files an answer or motion for
summary judgment. A motion to dismiss under Rule 12(b)(6), however, does not terminate
the plaintiff’s right to voluntarily dismiss the complaint without an order of the court. Aamot
v. Kassel, 1 F.3d 441, 444-45 (6th Cir. 1993). In this case, therefore, once Plaintiffs filed
their Rule 41(a)(1) notice of voluntary dismissal, the case was effectively terminated against
these Defendants. See id. at 445 (stating that “a Rule 41(a)(1) notice of dismissal is
self-effectuating”).

Accordingly, Defendants’ motion to dismiss pursuant to Rule 12(b)(6) is MOOT.
IT IS SO ORDERED
Date February 17, 2015

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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