United States District Court, E.D. Missouri, Eastern Division
ERICK BURTON, individually and on behalf of all others similarly situated Plaintiffs,
EXPRESS SCRIPTS, INC., et al., Defendants.
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's motion (ECF No.
43) to voluntarily dismiss this case without prejudice.
Defendants oppose the motion, arguing that Plaintiff offers
no reason for voluntarily dismissing this case. Defendants
contend that it is clear from Plaintiff's previous
filings, and this Court's prior dismissal without
prejudice of Plaintiff's complaint for failure to state a
claim, that Plaintiff intends to refile this case in the
state court from which it was removed, thus engaging in
blatant forum shopping. Thus, Defendants ask that the
dismissal be with prejudice or, at a minimum, that the Court
condition the dismissal on Plaintiff paying Defendants'
costs and attorneys' fees if Plaintiff refiles the case
in another forum.
initial matter, although Plaintiff states that his motion is
filed “pursuant to Rule 41(a)(2) of the Federal Rules
of Civil Procedure, ” which requires court approval, he
correctly notes in his motion that “defendants have not
filed an answer, a counterclaim, or a motion for summary
judgment.” ECF No. 43 at 1. As such, Plaintiff may
voluntarily dismiss this case under Rule 41(a)(1), which
provides that a “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 . . . .” Fed.R.Civ.P.
have filed a motion to dismiss pursuant to Rule 12(b)(6),
which the Court granted,  but as “a motion to dismiss under
Fed.R.Civ.P. 12(b)(6) is neither an answer nor a motion for
summary judgment, its filing generally does not cut off a
plaintiff's right to dismiss by notice.” In re
Bath & Kitchen Fixtures Antitrust Litig., 535 F.3d
161, 166 (3d Cir. 2008). Only when a motion to dismiss is
converted by the district court into a motion for summary
judgment does it bar voluntary dismissal under Rule 41(a)(1).
See Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187
F.3d 941, 950 (8th Cir. 1999). No. such conversion occurred
Rule 41(a)(1), the dismissal is without prejudice unless the
notice states otherwise or unless the plaintiff previously
dismissed any federal or state court action based on the same
claim. Fed.R.Civ.P. 41(a)(1)(B). Here, Plaintiff's motion
states that his dismissal is without prejudice, and there is
no indication that Plaintiff has previously dismissed any
action based on the same claim. Therefore, the Court lacks
authority to dismiss the case with prejudice. See,
e.g., United States v. Dougherty, 486 Fed.Appx.
621, 621-22 (8th Cir. 2012) (unpublished) (affirming a
district court's grant of the government's motion for
voluntary dismissal without prejudice, even after the
defendant filed a Rule 12 motion to dismiss, and reasoning
that “because [the defendant] had not yet filed an
answer or summary judgment motion at the time that the
government [moved for a] voluntary dismissal, the dismissal
operated as one under [Rule] 41(a)(1)(A)(i) . . . . Thus, the
dismissal did not require a court order, and the court lacked
discretion to dismiss the action with prejudice.”).
the Court lacks authority to impose any conditions on the
dismissal. Adams v. USAA Cas. Ins. Co., 863 F.3d
1069, 1078 (8th Cir. 2017). This is true, even if the
voluntarily dismissal was filed merely to escape an adverse
decision or to seek a more favorable forum. Id. at
1079 (agreeing that plaintiffs are “entitled to file a
valid Rule 41[(a)(1)] notice of voluntarily dismissal for any
reason, ” even if it is “to flee the jurisdiction
or the judge”).
although the parties do not address this issue, the fact that
Plaintiff filed this case as a putative class action also
does not affect his right to voluntarily dismiss without
court approval. Rule 41(a)(1)(A) states that voluntary
dismissals without a court order are “subject to”
Rule 23(e). Fed.R.Civ.P. 41(a)(1)(A). However, Rule 23(e) was
amended in 2003 to clarify that the procedural requirements
for voluntary dismissals of class actions, including court
approval, apply only to “certified” classes.
Fed.R.Civ.P. 23(e). “The 2003 amendments to Rule 23(e)
intentionally . . . limit[ed] the courts' supervisory
powers over dismissals and voluntary settlements to class
actions in which a class has been certified.” 5 J. Wm.
Moore et al., Moore's Federal Practice § 23.160 (3d
ed. 2017); see also 7B Wright, Miller, & Kane,
Federal Practice & Procedure § 1797 (3d ed. 2017)
(“Whatever the justification for those protections, the
2003 amendments make clear that Rule 23(e) only applies to
the ‘claims, issues, or defenses of a certified
class.' Thus, settlements or voluntary dismissals that
occur before class certification are outside the scope of
subdivision (e).”). Moreover, “nothing in [the
Class Action Fairness Act, 28 U.S.C. § 1332(d), under
which this case was removed] altered the 2003 amendment to
Rule 23(e). Adams, 863 F.3d at 1082. Although the
Eighth Circuit has not definitively decided the issue, it has
recognized that “the overwhelming majority of courts
have held that when no class has been certified, voluntary
dismissal of a putative class action is governed not by Rule
23 but by Rule 41 . . . .” Id. at 1082-83
(reversing district court's sanction of an attorney for
voluntarily dismissing a putative class action under Rule
41(a)(1) prior to class certification even though the
dismissal was for the purpose of forum shopping and avoiding
an adverse result). The Court agrees with this majority rule,
which is supported by the text of Rule 23(e).
short, the Court will grant Plaintiffs voluntary motion to
dismiss without prejudice under Rule 41(a)(1)(A).
IT IS HEREBY ORDERED that Plaintiff's
motion to dismiss without prejudice is
GRANTED. ECF No. 43. The Court will enter a
separate Order of Dismissal.
 At oral argument on the motion to
dismiss, Plaintiff indicated that he wished to seek leave to
amend his complaint in this Court. In response to this
assertion, Defendants requested a ruling on their motion to
dismiss and suggested that if Plaintiff wished to seek to
replead his claims at a later ...