Summary
noting that "a [m]otion to [d]ismiss raises no legal barrier to the [p]laintiff's right to unilaterally dismiss his [c]omplaint without leave of the [c]ourt."
Summary of this case from Suter v. CarsonOpinion
Civil File No. 02-1774 (MJD/RLE)
June 9, 2003.
Scott Alan Teplinsky, Katz Manka Teplinsky Due Sobol, for and on behalf of the plaintiff.
Jeffrey F. Shaw, Briggs and Morgan, for and on behalf of the defendants, Schwing America, Inc. and FW Schwing, GMBH.
Michael Roger Moline, Conley Borgeson, for and on behalf of the Defendant Potratz Concrete Pumping, Inc.
ORDER
This matter is before the Court upon Defendants' Motions to Dismiss and Plaintiff's Motion for Voluntary Dismissal. Based on the foregoing, Plaintiff's Motion for Voluntary Dismissal is granted. Thus, Plaintiff's Complaint is dismissed without prejudice as to Defendants Schwing America and F.W. Schwing, GMBH. Further, Defendants' Motions to Dismiss Pursuant to Fed.R.Civ.P. Rule 12(b)(1) are denied as moot.
BACKGROUND
The Plaintiff, Lon Anderson, ("Plaintiff") filed a Complaint in federal district court on July 17, 2002. The Complaint invokes federal subject matter jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332. The face of the Complaint indicates that Plaintiff is a resident of Minnesota and that defendant Schwing America is a Minnesota corporation. The Complaint alleges claims of negligence, strict liability, and warranty regarding a Schwing Model 900 Concrete Pump that injured the Plaintiff. On August 7, 2002, Defendant Potratz Concrete Pumping ("Potratz Concrete") filed an answer to the Complaint.
On August 13, 2002 defendant Schwing America filed a motion to dismiss for lack of subject matter jurisdiction due to lack of complete diversity between the plaintiff and all defendants. On September 11, 2002, Schwing America filed its Memorandum of Law in Support of its Motion to Dismiss. On October 16, 2002, Schwing America filed a Service of Dispositive Motion Papers Letter with the Court. The Plaintiff did not respond to Schwing America's motion to dismiss and no motion hearing was requested on the motion. On November 4, 2002, the Plaintiff sent a letter to the attorneys for Schwing America and F.W. Schwing (collectively, "Schwing Defendants") requesting a stipulation to dismissal without prejudice of his claims against them. Plaintiff sent a copy of the letter to the Court and wrote a letter indicating his intent to voluntarily dismiss the two Schwing Defendants. The Schwing Defendants did not stipulate to the dismissal.
On November 20, 2002, defendant F.W. Schwing filed a motion to dismiss for lack of subject matter jurisdiction. On November 27, 2002 Potratz Concrete filed an Amended Answer and Cross-claim against the Schwing Defendants and filed a Motion to Dismiss for lack of subject matter jurisdiction. Plaintiff did not respond to F.W. Schwing or Potratz Concrete's motions to dismiss and no hearing was requested on the motions. Defendants Schwing America and F.W. Schwing did not respond to the cross-claim.
On December 6, 2002, by letter to the Court, Plaintiff's counsel indicated that he had not succeeded in obtaining a stipulation to dismissal from the Schwing Defendants, stated that he planned to file a motion for voluntary dismissal, and suggested that the Court, by its own motion, voluntarily dismiss the action. On December 11, 2002, Plaintiff moved the Court for voluntary dismissal of defendants Schwing America and F.W. Schwing pursuant to Fed.R.Civ.P. 41(a)(2). On January 8, 2003, Potratz Concrete filed an Objection to the motion for voluntary dismissal on the grounds that it had filed a cross-claim against Schwing America and F.W. Schwing and considered the action ripe for adjudication in one action. Plaintiff has not responded to the objection nor has a motion hearing been requested on the motion.
DISCUSSION
Complete diversity of citizenship of all plaintiffs from all defendants is required to maintain federal subject matter jurisdiction based on diversity of citizenship. See City of Indianapolis v. Chase National Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941).
Currently before the Court is Plaintiff's motion for voluntary dismissal pursuant to Fed R.Civ.P. 41(a)(2). Although the Plaintiff has labeled his motion a motion for voluntary dismissal, "pursuant to Fed.R.Civ.P. 41(a)(2)," thereby requesting permission from the Court to dismiss, the Court construes the motion according to the language of Rule 41(a)(1) because no answer or motion for summary judgment has been filed by the Schwing Defendants. See, e.g., Williams v. Clark, 34 F.3d 270, 272 (8th Cir. 1997); Woody v. City of Duluth, 176 F.R.D. 310, 313 (D.Minn. 1997); Cf. Fed.R.Civ.P. 8(f) ("All pleadings shall be so construed as to do substantial justice.")
Rule 41(a)(1) states in pertinent part:
Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, 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 . . .
Id.
A plaintiff is able to voluntarily dismiss an action as a matter of right anytime before an answer or a motion for summary judgment has been filed by a defendant. See Safeguard Business Systems, Inc., 176 F.R.D. 310 (8th Cir. 1997); Woody, 176 F.R.D. 310 (D.Minn. 1997); see also, American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963) (voluntary dismissal pursuant to 41(a)(1) is a "matter of right running to plaintiff and may not be extinguished or circumscribed by adversary or court.") The Eighth Circuit has stated that on review of dismissals pursuant to Rule 41(a)(1), it will "consider only whether an answer or a motion for summary judgment was filed before the notice of voluntary dismissal." Id. Further, "because the rule permits dismissal as of right, it requires only notice to the court, not a motion, and the permission or order of the court is not required." Safeguard, 907 F.2d at 861. A voluntary dismissal pursuant to Rule 41(a)(1) is a dismissal without prejudice unless the plaintiff has previously dismissed an action based on the same claim. See Williams, 82 F.3d at 273. The effect of a Rule 41(a)(1) dismissal without prejudice "is to render the proceedings a nullity and leave the parties as if the action had never been brought." In re Piper Aircraft Distrib. Sys. Antitrust Litig., 551 F.2d 213, 219 (8th Cir. 1977).
Here, it is undisputed that the Schwing Defendants have not filed answers or motions for summary judgment in this action. Potratz Concrete has filed an answer to the Complaint, however, a Rule 41(a) notice or motion can apply to less than all of the defendants and the rule has been interpreted to permit dismissal of any defendant who has not served an answer or motion for summary judgment. See Johnston v. Cartwright, 344 F.2d 773, 774 (8th Cir. 1965); Pedrina v. Chun, 987 F.2d 608, 609 (9th Cir. 1993), Cabrera v. Municipality of Mayamon, 622 F.2d 4, 6 (1st Cir. 1980); Young v. Wilky Carrier Corp., 150 F.2d 764 (3d Cir.), cert. denied, 326 U.S. 786, 66 S.Ct. 470, 909 L.Ed. 477 (1945).
Further, although the Schwing Defendants and Potratz have filed motions to dismiss for lack of subject matter jurisdiction, the Eighth Circuit has held that a plaintiff only loses the right to dismiss under 41(a)(1) when an "answer" or "motion for summary judgment" has been filed by the defendant, as provided in the Rule. "These two instances have been construed strictly and exclusively." Safeguard, 907 F.2d at 864; see Foss v. Federal Intermediate Credit Bank, 808 F.2d 657, 660 (8th Cir. 1986). As the Report and Recommendation adopted by this court in Woody v. City of Duluth stated, a defendant's "filing of a Motion to Dismiss raises no legal barrier to the Plaintiff's right to unilaterally dismiss his Complaint" without leave of the Court. Id., 176 F.R.D. at 314.
CONCLUSION
For the aforementioned reasons, the Court finds that Plaintiff is permitted to voluntarily dismiss his claims against Schwing America and F.W. Schwing, as a matter of right.
IT IS HEREBY ORDERED that:
1.) Plaintiff's Motion for Voluntary Dismissal (Docket No. 18) is GRANTED pursuant to Fed R.Civ.P. Rule 41(a)(1)(i).
2.) Plaintiff's Complaint (Docket No. 1) is DISMISSED WITHOUT PREJUDICE as to Defendants Schwing America and F.W. Schwing, GMBH.
3.) Motions to Dismiss filed by defendants Schwing America (Docket No. 4), F.W. Schwing, GMBH (Docket No. 13) are DENIED AS MOOT.
4.) Potratz Concrete Pumping's Motion to Dismiss pursuant to Fed.R.Civ.P. Rule 12(b)(1) (Docket No. 17) is DENIED AS MOOT.
5.) Potratz Concrete Pumping's Cross-claim (Docket No. 16) is DISMISSED WITHOUT PREJUDICE.