ORDER

JOHN R. TUNHEIM, United States District Judge

This matter is before the Court to determine whether the Court retains jurisdiction to entertain a motion for Rule 11 sanctions brought by defendant Hennepin County after plaintiff filed a notice of voluntary dismissal and, if so, whether sanctions are warranted. For the reasons that follow, the Court concludes that, although it retains jurisdiction to entertain the motion, the motion for sanctions is denied.

BACKGROUND

Plaintiff commenced this declaratory judgment action on May 7, 2002. This is the third action plaintiff has filed involving the same factual allegations. Plaintiff initially filed suit under the False Claims Act ("FCA") against Hennepin County Medical Center ("HCMC") and Hennepin Faculty Associates on July 23, 1997. United States ex rel. Kinney v. Hennepin County Med. Ctr., 2001 WL 930780 at *1 (D.Minn. 2001) ("Kinney I"). In the first lawsuit, plaintiff alleged that HCMC fraudulently billed Medicare and Medicaid for medically unnecessary ambulance services in violation of the FCA. On January 22, 2001, the District Court dismissed Hennepin County from the lawsuit on the ground that, based on the common law presumption that punitive damages may not be imposed on a governmental entity, HCMC did not fall within the scope of the term "person" as used in the FCA. Thereafter, plaintiff filed a second action, this time naming four individual employees of HCMC as defendants. United States ex rel. Kinney v. Stoltz, Civil No. 01-1287 (RHK/JMM) ("Kinney II"). Defendants moved to dismiss the complaint, alleging that because the alleged fraud was based directly on information produced during discovery in the prior litigation, it ran afoul of the public disclosure bar of the FCA. Before the district court heard oral argument on the motion, plaintiff served an amended complaint adding Hennepin County as a direct defendant. Plaintiff argued that because the county had undertaken to defend and indemnify the four individual defendants, it had waived its immunity and thus could be sued as a person under the False Claims Act.

In an order dated April 5, 2002, the District Court struck plaintiff's amended complaint from the record for failure to seek leave of court pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. The District Court also dismissed plaintiff's claim against the individual defendants on the merits for lack of jurisdiction. Specifically, the Court concluded that plaintiff had obtained his allegations through civil discovery in Kinney I and that plaintiff had failed to show he was an "original source" of the information on which the allegations of fraud are based. Kinney II is currently on appeal to the Eighth Circuit Court of Appeals. Meanwhile, plaintiff filed the current lawsuit seeking a judicial declaration that because Hennepin County extended a limited defense to indemnify the individual employees in Kinney II, Hennepin County has waived immunity and can now be sued for fraud under the False Claims Act.

On June 3, 2002, Hennepin County moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. Also on June 3, 2002, Hennepin County informed plaintiff in writing of its intent to seek Rule 11 sanctions if the complaint was not withdrawn, and delivered a copy of the memorandum in support of Rule 11 sanctions that it intended to serve. On June 11, 2002, Hennepin County formally served its Rule 11 motion on plaintiff's counsel, thus triggering the 21-day safe harbor provision under Rule 11(c)(1)(A). On July 11, 2002, nine days after the 21-day safe harbor period, plaintiff filed a notice of voluntary dismissal of this action pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. On July 16, 2002, defendant filed its motion for sanctions under Rule 11 with the Court. Thereafter, the Court directed the parties to file briefing on whether the Court retains jurisdiction over the Rule 11 motion after the case was dismissed.

DISCUSSION I. Voluntary Dismissal Pursuant to Rule 41(a)(1)

As an initial matter, defendants do not contest that plaintiff's filing of a voluntary notice of dismissal was permissible. Rule 41(a)(1) provides that "an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs." Fed.R.Civ.P. 41(a)(1)(i). "Because the rule permits dismissal as of right, it requires only notice to the court, not a motion, and permission or order of court is not required." Safeguard Bus. Sys. Inc. v. Hoeffel, 907 F.2d 861, 863 (8th Cir. 1990). The Eighth Circuit has construed this rule strictly, holding that a plaintiff loses the right to voluntary dismiss an action under Rule 41(a)(1) only after an answer or a motion for summary judgment has been filed. Foss v. Federal Intermediate Credit Bank of Saint Paul, 808 F.2d 657 (8th Cir. 1986); Williams v. Clarke, 82 F.3d 270, 272 (8th Cir. 1996); Safeguard, 907 F.2d at 863; Sequa Corp. v. Cooper, 245 F.3d 1036, 1037 (8th Cir. 2001) (plaintiff's dismissal of action pursuant to Rule 41(a)(1)(i) was proper and effective before service of an answer or a motion for summary judgment). In this case, neither an answer nor a motion for summary judgment had been filed before plaintiff filed the notice of dismissal. Defendants had only filed motions to dismiss. Accordingly, plaintiff was entitled to file a notice of dismissal, thus terminating this action without prejudice.

II. Jurisdiction over Motion for Rule 11 Sanctions

Though plaintiff's voluntary dismissal was effective, Hennepin County nonetheless maintains that the Court retains jurisdiction to entertain its motion for Rule 11 sanctions. In Cooter Gell v. Hartmarx Corp., 496 U.S. 384 (1990), the Supreme Court concluded that the filing of a notice of dismissal under Rule 41(a)(1) does not divest the district court of jurisdiction to consider a Rule 11 motion. Id. at 393-98. In so holding, the Court reasoned that a Rule 11 motion is not a judgment on the merits, but a collateral issue, and thus can be made after termination of the principal suit. The Eighth Circuit has similarly held that district courts retain jurisdiction over collateral matters following a voluntary dismissal under Rule 41(a)(1). Sequa Corp., 245 F.3d at 1037 (court retains jurisdiction to award costs following voluntary dismissal); Bryant v. Brooklyn Barbecue Corp., 932 F.2d 697, 699 (8th Cir. 1991) (court has jurisdiction to impose Rule 11 sanctions even though the complaint was dismissed prior to service on the defendants).

In 1993, Congress substantially revised Rule 11. One of the most significant changes was the addition of the so-called "safe-harbor" provision. This provision states that:

A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion . . . the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

Fed.R.Civ.P. 11(c)(1)(A).

In the wake of these amendments, parties opposing post-dismissal Rule 11 motions claimed that the 1993 amendments to Rule 11 essentially overruled Cooter. In VanDanacker v. Main Motor Sales Co., 109 F. Supp.2d 1045 (D.Minn. 2000), this District Court squarely addressed that argument and rejected it. Id. at 1052. The District Court held that whether a court has jurisdiction to entertain a Rule 11 motion and whether the defendant followed the proper procedure for bringing a Rule 11 motion are two separate issues. Id. The Court is persuaded by this reasoning and follows it.

Although the Court in VanDanacker concluded that it had jurisdiction over the Rule 11 motion under Cooter, the Court denied the defendant's motion as untimely because the motion was not served until after plaintiff had voluntarily dismissed the case. Other courts have similarly denied a Rule 11 motion where the motion was not served until after the case was dismissed. Barber v. Miller, 146 F.3d 707 (9th Cir. 1998); Hockley v. Shan Enterprises Ltd. Partnership, 19 F. Supp.2d 235, 236-37 (D.N.J. 1998) (defendant did not serve its motion for sanctions in compliance with the safe harbor provision until after the stipulation of dismissal with prejudice was filed). These courts reasoned that to grant Rule 11 sanctions under such circumstances would defeat the purpose of the safe harbor provision: "If a party has already dismissed the suit before the moving party serves the motion, there is no pleading or contention left to be withdrawn." VanDanacker, 109 F. Supp.2d at 1054. The advisory committee notes to Rule 11 support this conclusion:

Ordinarily the motion should be served promptly after the inappropriate paper is filed, and, if delayed too long, may be viewed as untimely. . . . Given the `safe harbor' provisions . . . a party cannot delay serving its Rule 11 motion until conclusion of the case (or judicial rejection of the offending contention).

Fed.R.Civ.P. 11, Advisory Committee Notes (1993 Amendments) (emphasis added).

In this case, by contrast, Hennepin County formally served its motion on plaintiff on June 11, 2002, over 21 days before plaintiff filed its notice for voluntary dismissal. Accordingly, Hennepin County followed the proper procedure by first serving the motion for sanctions on plaintiff and then giving plaintiff 21 days in which to correct the defective pleading. Thus, the procedural deficiency noted by the courts in VanDanacker and Hockley is not present here.

III. Rule 11 Motion

Upon consideration of the respective arguments, the Court concludes that, even if a violation of Rule 11 did occur, the Court declines to award sanctions. Fed.R.Civ.P. 11(c) (providing that if a court determines that subdivision (b) has been violated, a district court may impose an appropriate sanction) (emphasis added). See also United States v. Prestonwood Prop. Inc., No. 3-99-CV-0495-R, 1999 WL 766022 at *1 (N.D. Tex. 1999) (finding a Rule 11 violation but declining to impose sanctions); Whitaker v. Ameritech Corp., No. 95-C-2949, 1996 WL 341543 at *12 n. 10 (N.D.Ill. 1996) (concluding that "[a]lthough the conduct of Whitaker's attorneys appears to be a Rule 11 violation, it is de minimis, and we decline to impose sanctions); Schoenholz v. Long Island Jewish Med. Ctr., 858 F. Supp. 350, 355 (E.D.N.Y. 1994) (concluding that, although statements come "dangerously close" to Rule 11 violation, the court declined to impose sanctions at this time); Religious Order of St. Matthew v. Brennan, No. 3:92-CV-793, 1995 WL 555102 at *19 n. 6 (N.D.Ind. 1995) (declining to award sanctions under Rule 11 as a matter of discretion).

In reaching this conclusion, the Court takes into account the fact that plaintiff did ultimately dismiss his complaint. The minor delay in plaintiff's dismissal of the case outside the 21-day period is de minimis. Harding, 48 F. Supp.2d at 772-73 (holding in the alternative that plaintiff's failure to dismiss complaint within the safe harbor period was de minimis and that court, in the exercise of discretion, would deny sanctions). The Court, however, issues a strong cautionary warning to plaintiff of the need to comply with the requirements of Rule 11 in any future filing with the Court, and if he does not, the Court will consider sanctions at that time.

ORDER

Based upon all of the files, records and proceedings herein, IT IS HEREBY ORDERED that defendant's motion for sanctions [Docket No. 8] is DENIED.