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Herman Nelson, Joel Decatur v. Janet Napolitano

September 15, 2011


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 C 2991-Robert M. Dow,Jr., Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge.


Before KANNE, ROVNER and SYKES, Circuit Judges.

Herman Nelson, Joel Decatur, Andre Lawson and Ernest Carter were employed by the Department of Homeland Security ("DHS"). In 2007, they filed a six-count employment discrimination suit*fn1 against DHS. After the district court granted the defen- dant's motion to dismiss two of the counts, DHS failed to answer the complaint, apparently due to an oversight. In May 2009, the plaintiffs moved for a voluntary dismissal without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A). The court granted the motion and struck as moot all other pending matters in the case. Nine months later, the plaintiffs moved to reinstate the case under Federal Rule of Civil Procedure 60(b). The court denied the motion and the plaintiffs appeal. We affirm.


Nelson, Decatur, Lawson and Carter were Federal Air Marshals. They charged DHS with race- and age-based discrimination, as well as retaliation against certain of the plaintiffs who complained about discriminatory practices. Approximately two years after filing the complaint, one of the plaintiffs, Andre Lawson, was arrested for sexual assault. After leaving the Air Marshals, Lawson had become a home detention officer. In that capacity, he made monitoring visits to offenders sentenced to home confinement. Lawson eventually pled guilty to sexually assaulting a woman he was assigned to monitor. After Lawson was arrested but before he pled guilty, the other plaintiffs, fearing the effect of the arrest on the case and uncertain of the outcome of Lawson's criminal proceedings, decided to request the voluntary dismissal of the lawsuit under Rule 41(a)(1)(A). They were under the impression that they could move under Rule 60(b) to reinstate the suit within one year. They anticipated that the criminal matter would be resolved by then and they could evaluate whether to move forward with their suit at that time.

Rule 41 provides for voluntary dismissal of an action under certain circumstances:

a) Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:

(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

Fed. R. Civ. P. 41. As we noted, because of an oversight, DHS had not yet answered the complaint even though a considerable amount of time had passed, and so the plaintiffs were entitled to voluntarily dismiss the suit without leave of court and without a court order, using Rule 41(a)(1)(A)(i). Although the plaintiffs miscaptioned their notice of dismissal as a "Motion for Voluntary Dismissal Pursuant to FRCP 41(a)(1)(A)," that filing effected the immediate dismissal of the suit. Smith v. Potter, 513 F.3d 781, 782 (7th Cir. 2008); Jenkins v. Village of Maywood, 506 F.3d 622, 624 (7th Cir. 2007). No action remained for the district court to take. Smith, 513 F.3d at 782; Jenkins, 506 F.3d at 624. The court's subsequent order purporting to dismiss the case was therefore void and had no legal effect. Smith, 513 F.3d at 782-83.

A suit that is voluntarily dismissed under Rule 41(a) generally is treated as if it had never been filed. Smith, 513 F.3d at 783; Beck v. Caterpillar, Inc., 50 F.3d 405, 407 (7th Cir. 1995). See also Robinson v. Willow Glen Acad., 895 F.2d 1168, 1169 (7th Cir. 1990) (the effect of a voluntary dismissal is to turn back the clock; it is as if the plaintiff's lawsuit had never been brought); Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1078 (7th Cir. 1987) (same); United States v. Mount Vernon Memorial Estates, Inc., 734 F.2d 1230, 1236 (7th Cir. 1984) (same). Once an action has been dismissed under Rule 41(a)(1) without prejudice, the plaintiff may bring the suit again by filing a new complaint. Richmond v. Chater, 94 F.3d 263, 267 (7th Cir. 1996) (filing a new complaint and paying a new filing fee is generally required following dismissal without prejudice); Adams v. Lever Bros. Co., 874 F.2d 393, 395-96 (7th Cir. 1989) (refiling a complaint after a Rule 41(a)(1) dismissal requires a new docket fee and compliance with the statute of limitations); McCall-Bey v. Franzen, 777 F.2d 1178, 1184 (7th Cir. 1985) (Rule 41(a)(1) allows a plaintiff to "dismiss without the court's permis- sion, and without prejudice to his being able to bring a new suit, if the defendant has not yet answered the complaint or moved for summary judgment"); Fed. R. Civ. P. 3 ("A civil action is commenced by filing a complaint with the court.").

But the plaintiffs here did not file a new lawsuit. Instead, nine months after the dismissal, and after the statute of limitations had expired, they filed a "Motion to Reinstate Complaint Pursuant to FRCP 60(b) that was Voluntarily Dismissed Without Prejudice." Without specifying which of the six subparts of Rule 60(b) applied, the plaintiffs explained that they sought voluntary dismissal "following a set of unforeseen circumstances regarding one of the named plaintiffs that had a tendency to directly impact on these proceedings and required additional time to sort out the legal impact to the plaintiffs' case in chief." R. 38, at 2. The plaintiffs maintained that charges against one of them had caught them by surprise, and that they decided for tactical reasons to dismiss the suit until those charges were resolved. They sought "reinstatement" of their complaint and requested a status hearing to set a discovery cut-off date and address pre-trial matters. DHS responded that the court lacked jurisdiction to entertain a Rule 60(b) motion in a case that had been voluntarily dismissed. In the alternative, DHS argued that the plaintiffs had not demonstrated sufficient grounds to warrant relief under Rule 60(b). In reply, the plaintiffs responded that the Rule "is written broadly enough where the Court is free to consider any reason for relief." R. 42, at 4-5.


The district court was uncertain whether it retained jurisdiction to consider the Rule 60(b) motion following a voluntary dismissal under Rule 41(a)(1)(A)(i). Although it is true that a suit that has been voluntarily dismissed under Rule 41(a)(1)(A)(i) generally is treated as if it had never been filed, the Supreme Court and this court have recognized the limits of that characterization. For example, the Supreme Court held that "a federal court may consider collateral issues after an action is no longer pending." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990). Thus, after a voluntary dismissal under Rule 41(a)(1)(A)(i), a court may still impose sanctions under Federal Rule of Civil Procedure 11, or adjudicate a criminal contempt charge even after the action in which the contempt arose has been terminated. Cooter & Gell, 496 U.S. at 395-96. The Court noted that the purpose of Rule 41(a)(1) is to limit a plain-tiff's ability to dismiss an action. 496 U.S. at 397. Prior to the promulgation of Rule 41, liberal procedural rules allowed plaintiffs to dismiss as a matter of right until the entry of the verdict. Rule 41(a)(1) preserved a plaintiff's right to dismiss an action without the permission of the court or the agreement of the adverse party only during the (usually) brief period before the defendant answered or moved for summary judgment, before the defendant had made a significant commitment of time and money. Cooter & Gell, 496 U.S. at 397. "Rule 41(a)(1) was not designed to give a plaintiff any benefit other than the right to take one such dismissal without prejudice." Id. The Court noted that the Rule 41(a)(1) and Rule 11 shared the goal of curbing abuses of the judicial system. Allowing a plaintiff to avoid Rule 11 sanctions by taking a dismissal would eliminate the incentive for litigants to investigate carefully before filing papers. Cooter & Gell, 496 U.S. at 397-98. The ...

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