Mitchell v. Vick et al

Filing 37

ORDER. Plaintiff' s Motion for Voluntary Dismissal (Doc. No. 36 ), filed on October 12, 2018, is deemed a notice of dismissal. The above-captioned action is DISMISSED with prejudice to refiling, effective as of October 12, 2018. Signed by Honorable Charles Goodwin on 10/16/2018. (jb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DAVID B. MITCHELL,
Plaintiff,
v.
CHRISTIE VICK et al.,
Defendants.

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Case No. CIV-18-234-G

ORDER
Now before the Court is Plaintiff David B. Mitchell’s Motion for Voluntary
Dismissal (Doc. No. 36), in which Plaintiff requests that the Court dismiss the action with
prejudice. See Pl.’s Mot. at 1.
Federal Rule of Civil Procedure 41(a)(1)(A)(i) provides that a plaintiff may dismiss
an action without a court order by filing “a notice of dismissal before the opposing party
serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i).
Under this Rule, “a plaintiff has an absolute right to dismiss without prejudice and no action
is required on the part of the court.” Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir.
2003). Because no opposing party has served either an answer or a motion for summary
judgment in this action, the Court construes Plaintiff’s Motion as a notice of voluntary
dismissal under Rule 41(a)(1)(A)(i). See Deutsch v. Gallegos, 98 F. App’x 723, 724-25
(10th Cir. 2004).
Federal Rule of Civil Procedure 41(a)(1)(B) provides that a Rule 41(a)(1)(A)
voluntary dismissal is without prejudice “[u]nless the notice . . . states otherwise.” Fed. R.

Civ. P. 41(a)(1)(B). Here, Plaintiff states that he seeks dismissal “with prejudice to
refil[ing].” Pl.’s Mot. at 1. Dismissal of the action with prejudice to refiling is, therefore,
required. See Schmier v. McDonsald’s LLC, 569 F.3d 1240, 1242 (10th Cir. 2009).
Plaintiff’s voluntary dismissal with prejudice “operates as a final adjudication on the
merits, and is thus a final judgment.” Id. (citations and internal quotation marks omitted).
ACCORDINGLY, Plaintiff’s Motion for Voluntary Dismissal (Doc. No. 36), filed
on October 12, 2018, is deemed a notice of dismissal pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(i). The above-captioned action is DISMISSED with prejudice to
refiling, effective as of October 12, 2018. See Fed. R. Civ. P. 41(a)(1)(A), (B); Pl.’s Mot.
at 1.
IT IS SO ORDERED this 16th day of October, 2018.

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