Filing 22


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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA M IC H A E L ALAN CROOKER, P la in tif f , v. WACHOVIA BANK, AND LUSTIG, G L A S E R & WILSON, P.C., D e f e n d a n ts. Civil Action No. 09-2076 M a y _13__ , 2010 M EM ORANDUM N o w before the court is plaintiff Michael Alan Crooker's motion for re c o n s id e ra tio n of this court's March 25, 2010 order granting voluntary dismissal as to d e f e n d a n t Wachovia pursuant to Rule 41(a)(2), and ordering defendant Lustig to advise th is court whether it would consent to this court's voluntary dismissal of Crooker's claims a g a in s t Lustig or whether Lustig intends to pursue its counterclaim and believed the c o u n te rc la im would be susceptible of independent adjudication. I. On April 30, 2009, Crooker filed a pro se complaint in the Pennsylvania Court of C o m m o n Pleas alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), -1- and the case was removed to federal court on May 13, 2009. On May 27, 2009, W a c h o v ia filed a motion to dismiss plaintiff's cause of action pursuant to F. R. Civ. P. 1 2 (b )(6 ) and 12(e). On June 5, 2009, Lustig filed its answer, affirmative defenses, and c o u n te rc la im , which contained a request for sanctions. Plaintiff's notice of dismissal, d o c k e te d by the Clerk of Court on August 19, 2009, sought dismissal under Federal Rule 4 1 (a )(1). A plaintiff may voluntarily dismiss his cause of action if he files a notice before " th e opposing party serves either an answer or a motion for summary judgment." F. R. C iv . P. 41(a)(1)(A)(i). Because this court understood from the notice of dismissal's d o c k e tin g date that plaintiff had filed the notice after defendants had filed their responses, th e court denied plaintiff's motion for voluntary dismissal pursuant to Federal Rule 4 1 (a )(1 ). Instead, the court dismissed with prejudice plaintiff's cause of action against W a c h o v ia pursuant to F. R. Civ. P. 41(a)(2), which permits dismissal "at the plaintiff's re q u e s t only by court order, on terms that the court considers proper." The court directed defendant Lustig to advise it whether it would consent to the court's voluntary d is m is s a l of Crooker's claims against Lustig or whether Lustig intends to pursue its c o u n te rc la im and believed the counterclaim would be susceptible of independent a d ju d ic a tio n . In his motion for reconsideration, filed on April 1, 2010, plaintiff argues th a t this court committed a factual error. He contends that he filed his notice of voluntary d is m is s a l on May 29, 2009 and that it "is not [his] fault that the Pro Se Clerk did not -2- immediately file the Notice of Dismissal on the date that it was received," and instead d o c k e te d the notice on August 19, 2009. The notice of dismissal contained a certificate o f service signed by Crooker and dated May 29, 2009 stating that a copy of that notice w a s mailed to Franco Corrado, counsel for Wachovia. Because he filed this notice of d is m is s a l before either defendant filed an answer or motion for summary judgment he c o n te n d s that dismissal should have been granted pursuant to F. R. Civ. P. 41(a)(1)(i). II. This court concludes that the effective date of the notice of dismissal is May 29, 2 0 0 9 , pursuant to the prisoner mailbox rule. Under the mailbox rule, a pro se prisoner's h a b e a s petition is considered filed on the date that the prisoner delivers the complaint to p riso n authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988); Burns v. M o r to n , 134 F.3d 109, 113 (3d Cir. 1998). That rule has been extended to pro se prisoner f ilin g s in other civil actions. See Gibbs v. Deckers, 234 F.Supp.2d 458, 461 (D. Del. 2 0 0 2 ) ("Although Houston dealt specifically with the filing of a habeas appeal, the d e c is io n has been extended by the Third Circuit to other prisoner filings."); Smith v. C a r r o ll, 602 F.Supp.2d 521, 526 n.7 (D. Del. 2009) (applying prisoner mailbox rule to a m e d ic a l malpractice complaint); Rivers v. Horn, No. 00-3161, 2001 WL 312236, *1 (E .D .P a . March 29, 2001) ( identifying federal courts that have extended Houston to in c lu d e pro se prisoner complaints and holding that Houston applies to pro se prisoner f ilin g s of Section 1983 claims). -3- Given the "[evidentiary] difficulty in determining when a prisoner relinquishes c o n tro l of the complaint to prison personnel" this date is presumed to be the date plaintiff g a v e the notice to prison officials to be mailed. Taylor v. Naylor, No. 041826, 2006 WL 1 1 3 4 9 4 0 , * 3 (W.D.Pa. April 26, 2006) (citing Mingues v. Nelson, No. 96 CV 5396, 2004 W L 324898, at *3 (S.D.N.Y. Feb.20, 2004)). Thus, plaintiff filed his notice to dismiss a fte r Wachovia filed a motion to dismiss and before Lustig filed a motion for summary ju d g m e n t. Voluntary dismissal by the plaintiff is available under F. R. Civ. P. 4 1 (a )(1 )(A )(i) if it is filed before "the opposing party serves either an answer or a motion f o r summary judgment." F. R. Civ. P. 41(a)(1)(A)(i). This rule has been "strictly in te rp re te d " by several courts of appeals including our own to "make clear that only an a n s w e r or a summary judgment motion can extinguish a plaintiff's right to dismiss the c o m p la in t without prejudice." Manze v. State Farm Ins. Co., 817 F.2d 1062, 1066 (3d Cir. 1 9 8 7 ) (listing cases). Wachovia filed a motion to dismiss, not an answer. Accordingly, p la in tif f is entitled to voluntary dismissal of his claims against Wachovia under F.R. Civ. P . 41(a)(1)(A)(i). Likewise he is entitled to voluntary dismissal of his claims against L u stig . III. In accordance with this opinion, the accompanying order grants the motion for re c o n s id e ra tio n and directs voluntary dismissal of plaintiff's claims against both d e f e n d a n ts . -4-

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