DocketNumber： 93-2268
Filed Date： 8/15/1994
Status： Precedential
Modified Date： 9/21/2015
August 15, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2268
MARTA VELEZ VDA DE FONTANEZ,
Plaintiff, Appellant,
v.
JEFFERSON PILOT LIFE INSURANCE COMPANY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Cyr, Circuit Judges.
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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.
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Columbia University, 845 F.2d 54, 55-56 (2d Cir. 1988), and
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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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