MCNEIL
v.
FREEMAN
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The court granted plaintiff's notice of voluntary dismissal with prejudice against two individual defendants, despite the notice being filed after the defendants had answered. The court construed the ineffective Rule 41(a)(1) notice as a motion under Rule 41(a)(2) and approved the dismissal on proper terms.
The court held that the notice was ineffective under Rule 41(a)(1) because defendants had already filed an answer. The court construed the notice as a motion for dismissal under Rule 41(a)(2) and granted the motion, finding the requested terms of dismissal with prejudice to be proper.
[1] A plaintiff may voluntarily dismiss an action by notice under Federal Rule of Civil Procedure 41(a)(1) only if the opposing party has not yet served an answer or a motion…
[2] A notice of voluntary dismissal filed after an answer has been served can be construed as a motion for dismissal under Federal Rule of Civil Procedure 41(a)(2).
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 41(a)(1) only allows a plaintiff to dismiss an action by notice either "before the opposing party serves either an answer or a motion for summary judgment," or by "a stipulation of dismissal signed by all parties who have appeared."”
Establishes the strict requirements for unilateral dismissal by notice under the federal rules
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Join FLexlaw to unlock all legal intelligencePlaintiff filed a Notice of Voluntary Dismissal with Prejudice on December 9, 2024, seeking to dismiss claims against defendants Jimmy R Freeman and N…
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On December 9, 2024, Plaintiff filed a Notice of Voluntary Dismissal with Prejudice Solely as to Defendants Jimmy R Freeman and Nancy J. Freeman TR. (Notice, Dkt. 30.) Because this document is styled a notice rather than a motion, the court presumes that Plaintiff is attempting to voluntarily dismiss this action as to the named Defendants under Federal Rule of Civil Procedure 41(a)(1). However, Rule 41(a)(1) only allows a plaintiff to dismiss an action by notice either "before the opposing party serves either an answer or a motion for summary judgment,” or by "a stipulation of dismissal signed by all parties who have appeared." Fed. R. Civ. P. 41(a)(1)(A). Upon review of the docket, Defendants Jimmy R Freeman and Nancy J. Freeman TR have filed an answer, (Dkt. 24), and the Notice is signed only by Plaintiff, (see Dkt. 30). Accordingly, the Notice is ineffective under Rule 41(a)(1).
The court construes the Notice as a motion to dismiss this case as against Jimmy R Freeman and Nancy J. Freeman TR under Rule 41(a)(2), which provides for dismissal upon court order “on terms that the court considers proper." See Sanchez v. Discount Rock & Sand, Inc., 84 F. 4th 1283, 1292 (11th Cir. 2023) (“Rule 41(a)(2), by its plain language, doesn't require a motion . [a]nd, several times, we've approved dismissal orders that treated Rule 41(a)(1)(A) notices and stipulations as requests for a Rule 41(a)(2) court order."). The court finds that the terms Plaintiff seeks in the Notice, dismissal of all claims against Jimmy R Freeman and Nancy J. Freeman TR with prejudice, to be proper.
Accordingly, Plaintiff's construed motion to dismiss all claims against Defendants Jimmy R Freeman and Nancy J. Freeman TR under Rule 41(a)(2) (Dkt. 30) is GRANTED. The claims against Defendants Jimmy R Freeman and Nancy J. Freeman TR are DISMISSED with prejudice.
ORDERED in Orlando, Florida, on December 10, 2024.
JULIE S. SNEED
UNITED STATES DISTRICT JUDGE
Copies furnished to: Counsel of Record