United States District Court, W.D. Louisiana, Alexandria Division
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
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
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
(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
(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.
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)).
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). See Carter, 547 F.2d at
notice of dismissal under Rule 41 is “self-executing,
” so there is no need even for “a perfunctory
order of court closing the file.” 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, 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.
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