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Legal Memorandum: Motion to Withdraw a Complaint in VI

Issue: Under the rules of the U.S. District Court for the Virgin Islands, does a defendant’s motion to dismiss for lack of subject matter jurisdiction affect a plaintiff’s motion to withdraw a complaint?

Area of Law: Litigation & Procedure
Keywords: Motion to withdraw a complaint; Motion to dismiss; Lack of subject matter jurisdiction
Jurisdiction: Federal, Virgin Islands
Cited Cases: 492 F.2d 26; 930 F. Supp. 1028; 190 F.2d 303; 728 F. Supp. 1142
Cited Statutes: Fed. R. Civ. P. 41; Fed. R. Civ. P. 41(a)(1); Fed. R. Civ. P. 41(a)(2)
Date: 10/01/2004

Federal Rule of Civil Procedure 41(a) governs plaintiffs’ automatic voluntary dismissals pursuant to 41(a)(1) and dismissals by court order pursuant to Rule 41(a)(2).  Fed. R. Civ. P. 41.  The general purpose of the rule is to preserve a plaintiff’s right to voluntarily withdraw and start over, as long as the defendant is not hurt.  Thus, it is a long-standing rule in the Third Circuit that pursuant to Rule 41(a)(2), a plaintiff can dismiss at any time without prejudice with the court’s permission, which is given at the court’s discretion.  See Ockert v. Union Barge Line Corp., 190 F.2d 303, 305 (3d Cir. 1951).  Numerous cases in various jurisdictions indicate that courts will generally allow a plaintiff to withdraw even though a motion by defendant is pending.  See, e.g., Coyle v. Madden, NO. CIV. A. O3-4433, 2003 WL 22999222, at *5 (E.D. Pa. Dec. 17, 2003) (copy  attached hereto as Exhibit 1) (a voluntary withdrawal of a claim makes defendant’s pending motion to dismiss moot); Assoc. In Obstetrics & Gynecology v. Upper Merion Township, 270 F. Supp. 2d 633, 664 (E.D. Pa. 2003) (plaintiffs withdrew a count of their complaint at oral argument, so that defendants’ motion to dismiss that count was denied as moot.); Shapiro v. Middlesex County Mun. Joint Ins. Fund, 930 F. Supp. 1028, 1033 (D.N.J. 1996) (plaintiff’s voluntary dismissal of its amended federal complaint came when motions to dismiss were pending).  

No law restricts a judge from […]

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