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Wang v. De Jongh

United States District Court, W.D. Louisiana, Alexandria Division

December 13, 2018

QIONG WANG
v.
LOURDES RODRIQUEZ DE JONGH

          DRELL JUDGE

          MEMORANDUM ORDER

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Petitioner Qiong Wang (“Wang”) filed an Emergency Petition for Writ of Habeas Corpus (Docs. 1, 4) pursuant to 28 U.S.C. § 2241, contending she was denied due process during her bond redetermination hearing and challenging Respondents' authority to continue to detain her indefinitely (Doc. 1). Wang seeks injunctive relief, attorney's fees, and costs (Doc. 4).

         Respondents filed a Motion to Dismiss for lack of jurisdiction (Doc. 13). Wang then filed a Notice of Voluntary Dismissal (Doc. 16), asking to withdraw her petition pursuant to Fed.R.Civ.P. 41(a)(1). That rule states:

(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

         As the plain terms of Rule 41(a)(1)(i) establish, a plaintiff has an absolute right to dismiss a lawsuit before the defendant has filed an answer or summary judgment motion. See Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977). Dismissal pursuant to rule 41(a)(1)(i) is “a matter of right running to the plaintiff and may not be extinguished or circumscribed by adversary or court.” See Int'l Driver Training Inc. v. J-BJRD Inc., 202 Fed.Appx. 714, 715 (5th Cir. 2006) (citing American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963)).

         Neither an answer nor a motion for summary judgment has been filed in this case. The fact that defendants have “joined issue” on the merits through a motion to dismiss does not affect plaintiff's ability to dismiss her suit. See Carter, 547 F.2d at 259. Unless a defendant has filed an answer or summary judgment motion, the governing provision is rule 41(a)(1).[1] See Carter, 547 F.2d at 259.

         A notice of dismissal under Rule 41 is “self-executing, ” so there is no need even for “a perfunctory order of court closing the file.”[2] Int'l Driver Training Inc. v. J-BJRD Inc., 202 Fed.Appx. 714, 716 (5th Cir. 2006) (citing 8 James W. Moore et al., Moore's Federal Practice § 41.33[2], at 41-48 (Matthew Bender 3d ed. 2006); American Cyanamid, 317 F.2d at 297). The plaintiff “suffers no impairment beyond his fee for filing.” See Int'l Driver Training Inc., 202 Fed.Appx. at 715 (citing American Cyanamid, 317 F.2d at 297). The effect of the dismissal is “to put the plaintiff in a legal position as if he had never brought the suit.” See Int'l Driver Training Inc., 202 Fed.Appx. at 715 (citing Harvey Specialty & Supply, Inc. v. Anson Flowline Equipment Inc., 434 F.3d 320, 324 (5th Cir .2005)); see also Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287, 293 (5th Cir. 2016) (citing Yesh Music v. Lakewood Church, 727 F.3d 356, 359 (5th Cir. 2013)).

         Once a plaintiff has filed a proper rule 41 notice, “any further action by the district court [is] neither necessary nor of any effect.” See Int'l Driver Training Inc., 202 Fed.Appx. at 715 (citing Scam Instrument Corp. v. Control Data Corp.,458 F.2d 885, 889 (7th Cir. 1972)). Once the order of dismissal is filed, the case effectively ceases. The district court is thereafter without jurisdiction to take further action. See Int'l Driver Training Inc., 202 Fed.Appx. at 715; Bechuck, 814 F.3d at 293, n.6. The Rule 41 Notice of Dismissal ...


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