from the United States District Court for the Northern
District of Texas
DAVIS, JONES, and DENNIS, Circuit Judges.
L.DENNIS, CIRCUIT JUDGE.
Kade Welsh appeals from an order dismissing his case with
prejudice after his attempt to dismiss unilaterally without
prejudice. Because the dismissal with prejudice was
erroneous, we VACATE and REMAND.
filed a state court action against Correct Care, L.L.C.,
Marsha McLane, Michael Searcy, and others, in which he
alleged constitutional violations and other wrongs inflicted
on him while he was in the custody of the Texas Civil
Commitment Office. After removing the case to federal court,
defendants McLane and Searcy filed a partial motion to
dismiss. McLane also filed an answer. Welsh then filed an
amended complaint, which no defendant answered.
later, Welsh moved to dismiss his action without prejudice.
After a clerical error, the court entered a nunc pro
tunc order dismissing the case "with
prejudice" on the ground that at least one
defendant-McLane- had answered. Welsh appeals, arguing that
he was entitled to voluntary dismissal without prejudice and
without a court order.
plaintiff may unilaterally dismiss his action without
prejudice by filing a "notice of dismissal before the
opposing party serves either an answer or a motion for
summary judgment." Fed.R.Civ.P. 41(a)(1)(A)(i). If the
defendant has filed an answer or a motion for summary
judgment, however, Rule 41(a)(2) permits dismissal at the
plaintiff's request "only by court order, on terms
that the court considers proper." Id. 41(a)(2).
Unless otherwise stated in the order, a dismissal under
either subsection is without prejudice. Id.
41(a)(1)(B), 41(a)(2). We review the district court's
decision for abuse of discretion. See Elbaor v. Tripath
Imaging, Inc., 279 F.3d 314, 318 (5th Cir. 2002).
Rule of Civil Procedure 41(a)(1)(A)(i) grants Welsh an
absolute right to dismiss his lawsuit before the defendant
has filed an answer or a summary judgment motion. Defendant
McLane filed an answer to Welsh's earlier complaint,
he did not answer Welsh's later-filed amended complaint.
We must, therefore, determine whether filing an answer to the
earlier complaint, but not to the amended complaint, is
sufficient to preclude the plaintiff from voluntarily
dismissing his claim as a matter of right under Rule
Fourth Circuit addressed this issue in Armstrong v.
Frostie Co. and determined that a plaintiff was barred
from unilaterally dismissing his complaint under Rule
41(a)(1)(A)(i) where a defendant filed an answer to the
plaintiff's original complaint but not to his amended
complaint. 453 F.2d 914, 916 (4th Cir. 1971). The court
reasoned that Rule 41(a)(1)(A)(i) "is designed to permit
a disengagement of the parties at the behest of the plaintiff
only in the early stages of a suit, before the defendant has
expended time and effort in the preparation of his case"
and the filing of an amended complaint "increased rather
than nullified [the defendant's] burden."
Id. Others have agreed. See Universidad Cent.
Del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760
F.2d 14, 18 (1st Cir. 1985) (noting that Armstrong
stands for the proposition that "a plaintiff cannot
supersede the cutting off of its right to give notice of
voluntary dismissal by filing an amended complaint after an
answer or motion for summary judgment has been filed by the
defendant"); Baiul v. NBC Sports, 708 Fed.Appx.
710, 713 (2d Cir. 2017) ("[N]o new right of dismissal is
created by the filing of an amended complaint, even one with
substantially new allegations."); see also 9
Wright & Miller, Federal Practice and Procedure §
2363, at 122 (3d ed. Supp. 2018) ("Multiple courts have
held that an answer to the plaintiff's original complaint
is sufficient to preclude dismissal by notice even though the
defendant has not submitted an answer to the plaintiff's
amended complaint."); cf. Van-S-Aviation Corp. v.
Piper Aircraft Corp., 551 F.2d 213, 220 (8th Cir. 1977)
("The purpose of Rule 41(a)(1)[(A)](i) is to fix the
point at which the resources of the court and the defendant
are so committed that dismissal without preclusive
consequences can no longer be had as of right.").
agree with the Fourth Circuit's reasoning and hold that
the filing of an amended complaint does not revive the
plaintiff's absolute right to dismissal under Rule
41(a)(1)(A)(i). See Armstrong, 453 F.2d at 916.
Because McLane filed an answer to Welsh's earlier
complaint, Welsh cannot utilize Rule 41(a)(1)(A)(i)'s
voluntary dismissal without a court order as to that
defendant. However, the Rules permit voluntary dismissal by
notice and without a court order of any defendant who has not
served an answer, which in this case is all defendants except
McLane. See Fed. R. Civ. P. 41(a)(1)(a)(i);
Plains Growers By & Through Florists' Mut. Ins.
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