Velez Vda deFontanez v. Jefferson Pilot ( 1994 )

USCA1 Opinion

          August 15, 1994       [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________


          No. 93-2268

            


                             MARTA VELEZ VDA DE FONTANEZ,

                                Plaintiff, Appellant,

                                          v.

                       JEFFERSON PILOT LIFE INSURANCE COMPANY,

                                 Defendant, Appellee.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Raymond L. Acosta, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                               Torruella, Chief Judge,
                                          ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ___________________

               Jose  L.  Delgado Cadilla  and Castro  & Delgado  Cadilla on
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          brief for appellant.
               Jose Hector Vivas and Vivas & Vivas on brief for appellee.
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                      Per   Curiam.    Plaintiff  requested  a  voluntary
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            dismissal  without prejudice.   The district  court "granted"

            plaintiff's motion,  but dismissed with  prejudice and denied

            plaintiff's motion for reconsideration, which objected to the

            dismissal with prejudice.   Plaintiff has appealed from those

            orders.  

                 While  neither  the  plaintiff nor  the  district  court

            referred  to  any  particular  rule,  we  conclude  that  the

            dismissal plaintiff  requested,  and the  court entered,  was

            pursuant to Fed. R. Civ. P.  41(a)(2) (voluntary dismissal by

            order of court), as there is no basis in the record before us

            for an involuntary dismissal under Fed. R. Civ. P. 41(b).  We

            conclude that  the court abused its  discretion in dismissing

            with prejudice without first giving plaintiff the opportunity

            to withdraw  her request for  voluntary dismissal.   In  this

            regard, we agree generally with the discussions in Gravatt v.
                                                               __________

            Columbia University, 845 F.2d 54,  55-56 (2d Cir. 1988),  and
            ___________________

            Andes  v. Versant Corp., 788 F.2d 1033, 1037 (4th Cir. 1986),
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            that if a plaintiff's motion to  dismiss without prejudice is

            to  be denied, the  plaintiff ordinarily should  be given the

            opportunity  to allow  the  case to  proceed  on the  merits,

            rather than being subjected to a dismissal with prejudice.

                 Plaintiff  asks that  we  direct the  district court  to

            dismiss without  prejudice.  We will not do so because on the

            present  record we can not say that plaintiff was entitled as



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            a  matter  of  law  to  an  unconditional  dismissal  without

            prejudice.     We summarily vacate the order of dismissal and

            remand for further proceedings consistent with this  opinion.

            Loc. R. 27.1.

                 Vacated and remanded.
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