Withdrawal of Motion – Court Error – Dismissal

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7^th Circuit Court of Appeals

Case Name: Pearl Carter v. City of Alton, et al.

Case No.: 18-2636

Officials: HAMILTON, BARRETT, and ST. EVE, Circuit Judges.

Focus: Withdrawal of Motion – Court Error – Dismissal

Pearl Carter moved to voluntarily dismiss the complaint that she had filed against Michael Morelli, Jeffrey Henderson, and the City of Alton. Her motion did not explicitly say that she sought dismissal without prejudice, but it did state that “neither party will be prejudiced by the granting of this Motion.” The defendants responded, arguing that the district court should grant Carter’s motion—but that it should do so with prejudice. Carter’s only reply was to amend her motion to specify that she sought dismissal without prejudice. The district court dismissed Carter’s complaint with prejudice. Carter filed a motion for reconsideration, requesting one of two remedies: she asked that the court either reinstate her action or enter an order dismissing it without prejudice. The court denied Carter’s motion for reconsideration, and she appeals.

Because the defendants had already filed an answer to Carter’s complaint, she could only voluntarily dismiss her action if all the parties signed a stipulation of dismissal or if she secured a court order. See FED.R. CIV. P. 41(a). Carter acknowledges that she did not file a signed stipulation, so the district court properly construed Carter’s motion as one seeking its approval to dismiss her case. Under Rule 41(a)(2), the court had discretion to dismiss the case either with or without prejudice. The court determined that a dismissal with prejudice was proper, and it was within its discretion to do so.

But before the court entered the dismissal order, it should have given Carter an opportunity to withdraw her voluntary dismissal motion. Babcock v. McDaniel, 148 F.3d 797, 799 (7th Cir. 1998) (“When a plaintiff moves for dismissal without prejudice, the district court may not dismiss the action with prejudice without first providing the plaintiff a reasonable opportunity to withdraw the motion.”); Marlow v. Winston & Strawn, 19 F.3d 300, 305 (7th Cir. 1994) (“[A] plaintiff who moves for dismissal without prejudice under Rule 41(a)(2) must be given a reasonable opportunity to withdraw his motion in the event the district court grants the motion but only with prejudice.”). Carter requested just such an opportunity, and the court refused to give it to her. That was error.

We thus VACATE the district court’s judgment dismissing Carter’s action with prejudice, VACATE the order of costs, and REMAND the case to the district court for proceedings consistent with this opinion.

Vacated and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.