Bunkers International Corporation v. Carreira Pitti, P.C.
Filing
18
OPINION AND ORDER OF DISMISSAL WITHOUT PREJUDICE the Court ORDERS that Banco Bilbao is DISMISSED WITHOUT PREJUDICE. Banco Bilboa's 11 Motion to dismiss is moot; mooting 11 MOTION to Dismiss MOTION for More Definite Statement, Banco Bilbao Vizcaya Argentaria, S.A. terminated.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BUNKERS INTERNATIONAL CORP.,
§
§
Plaintiff,
§
§
VS.
§
§
CARREIRA PITTI, P.C. and BANCO §
BILBAO VIZCAYA ARGENTARIA, S.A.,§
§
Defendants.
§
CIVIL ACTION H-10-3756
IN ADMIRALTY, Rule 9(h)
OPINION AND ORDER OF DISMISSAL WITHOUT PREJUDICE
Pending before the Court in the above referenced cause is
Plaintiff Bunkers International Corporation’s Federal Rule of Civil
Procedure 41(a)(1)(A)(i) Notice of Dismissal of Garnishee/Defendant
Banco Bilbao Vizcaya Argentaria, S.A. (“Banco Bilbao”) without
prejudice.
Banco Bilbao had not filed an answer or a motion for summary
judgment before the Notice of Dismissal was filed.
Banco Bilbao
did file a special appearance and motion to dismiss under Federal
Rule of Civil Procedure 12(b)(4)(insufficient process) and/or
12(b)(5)(insufficient service of process), or in the alternative
motion to dismiss under Fed. Rule Civ. P. 12(b)(2)(lack of personal
jurisdiction)
and/or
12(b)(3)(improper
venue),
or
in
the
alternative under Fed. Rule Civ. P. 12(b)(6)(failure to state a
claim upon which relief can be granted) or in the alternative
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motion for more definite statement pursuant to Fed. R. Civ. P.
12(e) (instrument #11, filed on December 2, 2010).
On May 19,
2011, the Court ordered Plaintiff to file a response by May 29,
2011 or the Court would consider the motion unopposed and review
it.
#15.
Plaintiff did not file a response.
Banco Bilbao then
filed a brief to exclude late filed response, if any, to #11, in
which Banco Bilbao states that it is “uncertain if Plaintiff even
obtained service over the true Defendant, Carreira Pitti, P.C.” and
asks the Court to grant its first motion to dismiss the claims
against it for lack of personal jurisdiction because Plaintiff has
not met its burden of establishing jurisdiction.
Rule
41(a)(A)(i)
grants
plaintiff
a
unilateral
right
to
dismiss an action without prejudice and without consent of the
Court by filing a notice of dismissal before the defendant has
filed an answer or a motion for summary judgment.
not cut off by a motion to dismiss.
That right is
Exxon Corp. v. Maryland
Casualty Co., 599 F.3d 659, 661 (5th Cir. 1979).
Moreover a Notice
of Voluntary Dismissal filed after a motion challenging personal
jurisdiction is not untimely, nor is dismissal barred because the
case would remain pending against another defendant.
Plains
Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 253,
254 (5th Cir. 1973).
Accordingly, the Court
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ORDERS that Banco Bilbao is hereby DISMISSED WITHOUT PREJUDICE
pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i).
Banco Bilbao’s motion
to dismiss (#11) is moot.
SIGNED at Houston, Texas, this
27th
day of
June , 2011.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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