Burrows v. Ryan et al
Filing
17
Opinion and Order vacating 14 Judgment, and granting 15 First MOTION for Reconsideration regarding 13 Order on Motion to Dismiss. It is further ordered that Defendant Kyle Ryan is dismissed from this action without prejudice. Signed by Honorable Henry M Herlong, Jr on 6/18/2018. (ncha, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON DIVISION
Paige Elizabeth Burrows,
Plaintiff,
vs.
Kyle Clyde Ryan, and
Anthony James Ryan, Jr.,
Defendants.
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C.A. No. 8:18-314-HMH
OPINION & ORDER
This matter is before the court on Paige Elizabeth Burrows’ (“Burrows”) motion
pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure requesting that the
court reconsider its April 23, 2018 Order dismissing the case for lack of subject-matter
jurisdiction. (April 23, 2018 Order, ECF No. 13.) After consideration, the court grants
Burrows’ motion.
A motion to alter or amend the judgment under Rule 59(e) may be made on three
grounds: “(1) to accommodate an intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error of law or prevent manifest
injustice.” Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). “Rule 59(e) motions
may not be used, however, to raise arguments which could have been raised prior to the issuance
of the judgment . . . .” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998). “In general reconsideration of a judgment after its entry is an extraordinary remedy
which should be used sparingly.” Id. (internal citation and quotation marks omitted)
Rule 60(b) “invest[s] federal courts with the power in certain restricted circumstances to
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vacate judgments whenever such action is appropriate to accomplish justice.” Compton v. Alton
S.S. Co., 608 F.2d 96, 101-02 (4th Cir. 1979) (internal quotation marks omitted). “The remedy
provided by the Rule, however, is extraordinary and is only to be invoked upon a showing of
exceptional circumstances.” Id. at 102.
Burrows argues that the court erred in failing to address her request to voluntarily
dismiss Kyle Clyde Ryan (“Kyle Ryan”) if he was found to be a South Carolina citizen and
further attaches to this motion a notice of dismissal pursuant to Rule 41(a)(1) of the Federal
Rules of Civil Procedure. (Mot. Reconsider, ECF No. 15, Ex. 1 (Not. Dismissal), ECF
No. 15-1.) After thorough review of the record in this case, the court finds that reconsideration
is appropriate. Rule 41(a)(1)(i) allows a plaintiff to “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)(i). Although inartfully stated, the court construes
the last sentence in Burrows’ response in opposition to Defendants’ motion to dismiss as a
notice of voluntary dismissal pursuant to Rule 41(a)(1)(i).
Burrows requested to voluntarily dismiss Kyle Ryan as a party pursuant to Rule
41(a)(1)(i) if the court determined that diversity jurisdiction was lacking. (Resp. Opp’n Mot.
Dismiss 5, ECF No. 11.) The Plaintiff’s notice of voluntary dismissal is voluntary. “The
contingent nature of the plaintiff[’s] request simply does not distinguish its voluntariness from,
for example, a non-contingent request for a dismissal under Rule 41 of the Federal Rules of
Civil Procedure.” Dearth v. Mukasey, 516 F.3d 413, 415 (6th Cir. 2008) (finding appeal
improper because dismissal was voluntary despite the contingent nature of plaintiff’s request for
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voluntary dismissal). However, the Plaintiff cannot voluntarily dismiss a party after judgment
has been entered.
[Rule 41] is based on the consideration that when a voluntary dismissal is
without prejudice the plaintiff is placed ‘in a legal position as if he had never
brought the first suit’ and has the right to bring a later suit on the same cause of
action without adjudication of the merits.
Id. (quoting LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976)); see also Kelly v.
Great Atl. & Pac. Tea Co., 86 F.2d 296, 297 (4th Cir. 1936). Therefore, in order to give effect
to the Plaintiff’s notice of voluntary dismissal, the April 23, 2018 Order is deemed moot and the
court vacates its April 23, 2018 judgment. Further, Kyle Ryan is dismissed without prejudice as
a party in this case.1 Based on the foregoing, Burrows’ motion is granted.
It is therefore
ORDERED that the court’s April 23, 2018 judgment, docket number 14, is vacated. It
is further
ORDERED that Burrows’ motion for reconsideration, docket number 15, is granted as
set out. It is further
ORDERED that Defendant Kyle Ryan is dismissed from this action without prejudice.
IT IS SO ORDERED.
s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
June 18, 2018
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Defendants have not served an answer or moved for summary judgment.
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