Legal Memorandum: Dismissal of Actions

Issue: Under the Federal Rules of Civil Procedure, in a proposed class action in which a class has not been certified, can the representative plaintiffs stipulate to defendant’s motion to dismiss to obtain a dismissal without prejudice?

Area of Law: Litigation & Procedure
Keywords: Voluntary dismissal of an action; Motion to dismiss; Dismissal without prejudice
Jurisdiction: Federal
Cited Cases: 187 F.3d 941
Cited Statutes: Fed. R. Civ. P. 41; Fed. R. Civ. P. 41(a)(1)(i)
Date: 01/01/2000

No case law was found that addressed the issue of a stipulation or lack of objection by a plaintiff to a defendant’s motion to dismiss.  It would appear that the terms of the stipulation or the defendant’s motion would determine whether the dismissal would be made with or without prejudice. 

Fed. R. Civ. P. 41 provides that the plaintiff in an action may seek a voluntary dismissal of an action at any time.  If, however, the defendant has filed an answer, the plaintiff is not entitled to a dismissal without prejudice as a matter of right.  Id.  Therefore, the court has the discretion to deny a motion for voluntary dismissal where the dismissal would be without prejudice.  Fed. R. Civ. P. 41(a)(1)(i).  See also Hamm v. Rhone-Poulenc Rorer Pharmaceuticals, 187 F.3d 941 (8th Cir. 1999), cert. den. by 68 U.S.L.W. 3337 (Jan. 8, 2000); J.R. Clearwater v. Ashland Chemical Co., 93 F.3d 176 (5th Cir. 1996).

Both Hamm and Clearwater concerned class action suits, so there is no indication that the status as a class action would directly change the possibility that a court can grant a motion to dismiss without prejudice.  See, e.g., Hamm, 187 F.3d at 943; J.R. Clearwater, 93 F.3d at 178.  However, there are several factors a court should consider in deciding whether to grant a voluntary dismissal.  These include the party’s explanation of the desire to dismiss, the possible prejudice to defendants, and the possibility that […]

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