Muir v. L3Harris Technologies Incorporated

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [9] No. CV-19-05887-PHX-DGC 10 Michael Gibson Muir, ORDER 11 Plaintiff, 12 v. 13 L3Harris Technologies, Inc., a Delaware corporation, [14] Defendant. [16] 17 Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant moved 18 to dismiss Plaintiff’s first amended complaint for failure to state a claim for relief. Doc. 22. 19 Plaintiff responded by filing a notice of voluntary dismissal under Rule 41(a)(1)(A)(i). 20 Doc. 25. Defendant objects to the notice and to voluntary dismissal without prejudice. 21 Doc. 26. For reasons stated below, the Court concludes that the filing of the notice of 22 dismissal automatically terminated this action and deprived the Court of jurisdiction over 23 Plaintiff’s claims. 24 Rule 41(a)(1)(A) provides that “the plaintiff may dismiss an action without a court 25 order by filing . . . a notice of dismissal before the opposing party serves either an answer 26 or a motion for summary judgment[.]” Unless the notice states otherwise, “the dismissal 27 is without prejudice[.]” Fed. R. Civ. P. 41(a)(1)(B). Plaintiff’s notice states that this action 28 is dismissed “without prejudice.” Doc. 25 at 1. 1 “The Ninth Circuit has been clear that Rule 41 confers on the plaintiff ‘an absolute 2 right to voluntarily dismiss his action prior to service by the defendant of an answer or a 3 motion for summary judgment.’” Pate v. Cheng, No. CV-14-02202-TUC-CRP, 2015 WL 4 795061, at *1 (D. Ariz. Feb. 25, 2015) (quoting Am. Soccer Co., Inc. v. Score First Enters., [5] 187 F.3d 1108, 1110 (9th Cir. 1999), and Wilson v. City of San Jose, 111 F.3d 688 , 692 6 (9th Cir. 1997)); see also Pedrina v. Chun, 987 F.2d 608 , 610 (9th Cir. 1993) (“The 7 language of Rule 41(a)(1) is unequivocal. It permits a plaintiff to dismiss an action 8 ‘without order of court.’”); Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042 , 9 1049 (9th Cir. 2001) (“We have held that Rule 41(a)(1)(i) grants plaintiffs ‘an absolute 10 right to dismiss without prejudice’ claims against one or more defendant, and requires no 11 action on the part of the court.”) (quoting Pedrina). 12 In Pedrina, the Ninth Circuit emphasized the unqualified nature of the plaintiff’s 13 right to dismiss under Rule 41(a)(1)(A)(i): 14 The filing of the notice itself closes the file. There is nothing the defendant 15 can do to fan the ashes of that action into life and the court has no role to play. This is a matter of right running to the plaintiff and may not be 16 extinguished or circumscribed by adversary or court. There is not even a perfunctory order of court closing the file. Its alpha and omega was the doing [17] of the plaintiff alone. [18] 987 F.3d at 610 (citation and brackets omitted); see Duke Engery, 267 F.3d at 1049 (same); [19] see also Am. Soccer, 187 F.3d at 1112 (“We agree that Rule 41 does not authorize a court [20] to make a case-by-case evaluation of how far a lawsuit has advanced to decide whether to [21] vacate a plaintiff’s voluntary dismissal. The literal terms of the rule apply: if the defendant [22] has not served an answer or a motion for summary judgment, the plaintiff may voluntarily [23] dismiss the suit without interference from the district court.”). [24] Because Defendant’s Rule 12(b)(6) motion is not an answer or a summary judgment [25] motion, Plaintiff has the absolute right to dismiss this action without prejudice and without [26] a court order under Rule 41(a)(1)(A)(i). Swedberg v. Marotzke, 339 F.3d 1139, 1145 (9th [27] Cir. 2003) (“Rule 41(a)(1) specifically allows a plaintiff to dismiss a complaint without [28] 1 prejudice in the face of a 12(b)(6) motion[.]”); Brown v. Morgan, No. 3:16-CV-5975-RBL2 TLF, 2020 WL 1941323 , at *4 (W.D. Wash. Feb. 19, 2020) (“A motion to dismiss is ‘neither 3 an answer nor . . . a motion for summary judgment,’ and thus does not terminate the 4 plaintiff’s right of dismissal by notice.”) (citation omitted). 5 On July 31, 2020, Plaintiff filed a complaint against Defendant in the Central District 6 of Illinois that is similar to his proposed second amended complaint in this case. Docs. 23, 7 26-1. Defendant asserts that the Illinois complaint was filed in “open defiance” of the 8 Court’s order denying leave to amend, and that Plaintiff has engaged in inappropriate forum 9 shopping. Doc. 26 at 1-2. Defendant contends that because its motion to dismiss included 10 extraneous materials, the motion must be treated as one for summary judgment under 11 Rule 12(d). Id. at 2 (citing Swedberg, 339 F.3d at 1140 ). But the Ninth Circuit made clear 12 in Swedberg that “[a] Rule 12(b)(6) motion to dismiss supported by extraneous materials 13 cannot be regarded as one for summary judgment until the district court acts to convert the 14 motion by indicating, preferably by an explicit ruling, that it will not exclude those materials 15 from its consideration. Until the district court has so acted, a plaintiff is free to file a proper 16 notice of dismissal pursuant to Rule 41(a)(1).” 339 F.3d at 1146 . The Court has not acted 17 to convert Defendant’s motion to one for summary judgment. 18 Defendant claims that the Court’s order requiring Plaintiff to respond to the 19 motion to dismiss “operated as an implicit ruling that [the] Rule 12(b)(6) motion was 20 converted to a summary judgment motion.” Doc. 26 at 2. The Court does not agree. The 21 Court directed Plaintiff to “file a response to Defendant’s motion to dismiss[.]” Doc. 24 22 at 3 (emphasis added). The Court did not intend to consider the extraneous materials. If 23 so, the Court would have explicitly converted the motion and directed pro se Plaintiff to the 24 requirements of Rule 56 and Local Rule of Civil Procedure 56.1. See Thomas v. Maricopa 25 Cty. Bd. of Supervisors, No. CV-07-0258-PHX-DGC (DKD), 2007 WL 2995634 , at *3 (D. 26 Ariz. Oct. 12, 2007) (converting a motion to dismiss into a motion for summary judgment 27 requires specific notice to the non-moving party, particularly in the case of a pro se litigant) 28 (citations omitted). 1 Defendant further claims that it will be prejudiced if this action is dismissed withou 2| prejudice because it will be forced to file a motion to dismiss in the Illinois action. Bu Defendant could have precluded a dismissal without prejudice in this case by answering th 4} complaint or filing a Rule 56 motion. See Swedberg, 339 F.3d at 1146 (noting tha 5| defendants “continue to enjoy the protection of [Rule 41(a)(1)], too, in that they may preven unilateral dismissal by serving plaintiff with an answer”); Am. Soccer, 187 F.3d at 111 ! 7| (C[I]f the defendant has not served an answer or a motion for summary judgment, th 8 | plaintiff may voluntarily dismiss the suit without interference from the district court. Thi: 9 | does not prejudice defendants. If defendants ‘desire to prevent plaintiffs from invokin: 10 | their unfettered right to dismiss actions under rule 41(1)(a) they may do so by taking th 11 | simple step of filing an answer.’”’) (citation and brackets omitted). 12 Defendant states that if the Court were to vacate the dismissal without prejudice 13 | allow this case to proceed, Defendants would move to dismiss the Illinois action under th 14| “first-to-file rule.” Doc. 26 at 4. But the Court does not have discretion to facilitat 15 | Defendant’s strategy. Once Plaintiff filed the notice of dismissal under Rule 41(a)(1)(A)() the Court “los[t] jurisdiction over the dismissed claims and may not address the merits o such claims or issue further orders pertaining to them.” Duke Energy, 267 F.3d at 104 ! (quoting Comm. Space Mgmt., 193 F.3d at 1077); Am. Soccer, 187 F.3d at 1112 (“[T]h 19 | ‘absolute right’ for a plaintiff voluntarily to dismiss an action when the defendant has no 20 | yet served an answer or a Summary judgment motion leaves no role for the court to □□□□□□ 21 IT IS ORDERED that the Clerk is directed to terminate this action given 22 | Plaintiffs notice of voluntary dismissal under Rule 41(a)(1)(A)G) (Doc. 25). 23 Dated this 14th day of August, 2020. 24 y 4 25 peed 6, Cane 26 David G. Campbell 27 Senior United States District Judge [28] _A.