Prince v. United States ( 2020 )

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION MICHAEL T. PRINCE PLAINTIFF Vv. CASE NO. 3:20-CV-3040 UNITED STATES OF AMERICA DEFENDANT ORDER OF DISMISSAL Before the Court is Plaintiff Michael T. Prince’s Notice of Voluntary Dismissal (Doc. - 13). For the reasons set forth below, the Court DISMISSES this case without prejudice. On May 26, 2020, Plaintiff filed his Complaint (Doc. 2). After being served, in lieu of filing an answer, Defendant United States of America filed a Motion to Dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), (Doc. 11), which is still pending. Plaintiff then filed this Notice seeking dismissal without prejudice of his action under Rule 41 (Doc. 13). The Notice is silent as to whether Defendant opposes this request. Federal Rule of Civil Procedure Rule 41(a)(1){A)(i) allows a plaintiff to voluntarily dismiss his action without prejudice and without a court order by filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Here, Defendant has filed neither an answer nor a motion for summary judgment, though it has filed a motion to dismiss under Rule 12(b)(1). While the Eighth Circuit has not ruled explicitly on this issue, other courts have found that motions to dismiss do not cut off a plaintiffs right to dismiss by notice. See In re Bath & Kitchen Fixtures Antitrust Litig., 535 F.3d 161, 166 (3d Cir. 2008) (“Because a motion to dismiss under [Rule 12(b)(6)] is neither an answer nor a motion for summary judgment, its filing generally does not cut off a plaintiff's right to dismiss by notice.”); see also Barkley v. Nash, 2017 WL 1906922, at *1 (W.D. Ark. May 9, 2017) (permitting dismissal by notice even though a motion to dismiss had been filed). The Court agrees with the other courts that have found that motions to dismiss do not cut off a plaintiff's right to dismiss via notice under Rule 41(a)(1)(A)(i), a position supported by the plain language of the Rule. Accordingly, because neither an answer nor a motion for summary judgment have been filed by Defendant, the Court finds that Rule 41(a)(1)(A)(i) applies and Plaintiff's claims against Defendant should be DISMISSED WITHOUT PREJUDICE. As a result of the dismissal of Plaintiff's Complaint, Defendant’s Motion to Dismiss (Doc. 11) is DENIED AS MOOT. The Clerk of Court is hereby directed to close Plaintiff's case. IT IS SO ORDERED on this_4___ day of Oot fo20 Aa ost □□ ApMOTHY BROOKS f UNITEDLSTATES DISTRICT JUDGE