Jane Doe v. City of Baton Rouge ( 2019 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-30277 November 19, 2019
Summary Calendar
Lyle W. Cayce
Clerk
JANE DOE,
Plaintiff - Appellant
v.
CITY OF BATON ROUGE; JAMES WEBER; CHARLES DOTSON;
STEPHEN MURPHY; S. CAREY, ET AL,
Defendants - Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-48
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jane Doe appeals the district court’s order dismissing her case with
prejudice, arguing that the dismissal should have been without prejudice. We
agree and therefore REVERSE.
“[A] plaintiff has an absolute right to dismiss a lawsuit before the
defendant has filed an answer or summary judgment motion.” Carter v. United
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
No. 19-30277
States, 547 F.2d 258, 259 (5th Cir. 1977). The defendants here had no
opportunity to do either of those things—they had, after all, not been served
with the complaint. The plaintiff thus still possessed the legal right to dismiss
her case without prejudice. See FED. R. CIV. PRO. 41(a)(1). The judgment is
REVERSED, and the case is remanded with instructions to enter an order
dismissing Jane Doe’s complaint without prejudice.
2