Drake v. Liberty Mutual Automotive Insurance Company

Full title: ERIC VON DRAKE v. LIBERTY MUTUAL AUTOMOTIVE INSURANCE COMPANY, ET AL

Court: United States District Court, E.D. Texas, Texarkana Division

Date published: Apr 25, 2006

No. 5:06CV24 (E.D. Tex. Apr. 25, 2006)

Opinion

No. 5:06CV24.

April 25, 2006

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

CAROLINE CRAVEN, Magistrate Judge

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for Assignment of Duties to United States Magistrate Judges, the above-entitled and numbered cause of action was referred to the Honorable Caroline M. Craven for pretrial purposes. The Court recommends Plaintiff's case against Liberty Mutual Insurance Company, Alice Tatum Andrews, Lisa D. Hull, Jessica Stettler, and Hartford Insurance Company be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(a)(1)(i).

I. BACKGROUND

On February 6, 2006, Eric Von Drake ("Plaintiff"), proceeding pro se, filed this action seeking to recover damages from Liberty Mutual Insurance Company, Alice Tatum Andrews, Lisa D. Hull, Jessica Stettler, Hartford Insurance Company, Abbas Sekhavat, Dana Bernstein, Joan Bazar, and Judge M. Kent Sims ("Judge Sims"). On April 21, 2006, the Court dismissed with prejudice Plaintiff's cause of action against Judge Sims. The same day, Plaintiff filed a Motion to Non-Suit (Docket Entry # 41). In his motion to non-suit, Plaintiff requests each defendant, with the exception of Judge Sims, be dismissed without prejudice.

II. FED. R. CIV. P. 41(a)

Federal Rule of Civil Procedure 41(a) provides, in pertinent part, as follows:

(1) . . . 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, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.

FED. R. CIV. P. 41(1)(a). Rule 41(a)(1)(i) allows a plaintiff to voluntarily dismiss an action, without prejudice, by filing a notice of dismissal at any time before service by a defendant of an answer or summary judgment motion. The "right is not cut off by a motion to dismiss." Exxon Corp. v. Maryland Casualty Co., 599 F.2d 659, 661 (5th Cir. 1979). "In addition, Rule 41(a)(1)(i) allows the plaintiff to dismiss fewer than all of the named defendants." Holmes v. Entergy Corp., 1999 WL 288774, *1 (E.D. La. 1999) (unpublished). If one defendant files and serves an answer, it does not bar the plaintiff from dismissing the remaining defendants." Id.

III. DISCUSSION

Although Plaintiff titled his motion a "motion for non-suit," the Court construes it as a Rule 41(a)(1)(i) notice of dismissal. See Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir. 1976). Here, the only remaining defendants who have filed answers are Sekhavat, Bernstein, and Bazar. Sekhavat filed a counterclaim against Plaintiff. The other defendants instead filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b) and/or motions to transfer venue. Accordingly, all remaining defendants, with the exception of Sekhavat, Bernstein, and Bazar, should be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(i). Sekhavat, Bernstein, and Bazar will have fifteen days from April 21 to address Plaintiff's Motion for Non-Suit, if they desire, and specifically whether the case against them should be dismissed with or without prejudice. Based on the foregoing analysis, it is

RECOMMENDED that Plaintiffs' above-entitled and numbered cause of action against Liberty Mutual Insurance Company, Alice Tatum Andrews, Lisa D. Hull, Jessica Stettler, and Hartford Insurance Company be DISMISSED WITHOUT PREJUDICE.

Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C.A. 636(b)(1)(C).

Failure to file written objections to the proposed findings and recommendations contained in this report within ten days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).