The opinion of the court was delivered by: William W. Caldwell United States District Judge
The pro se plaintiff, Deanna Kay Collins, a resident of North Carolina, filed this action against Lincoln Caverns, Inc., Patricia Ann Dunlavy, and Marion Dunlavy. According to the complaint, Lincoln Caverns is a tourist attraction in Huntingdon County, Pennsylvania, and the two individual defendants are officers of Lincoln Caverns, Inc. Plaintiff alleges Defendants committed, among other things, copyright infringement, fraudulent misrepresentation, and invasion of privacy.
On July 21, 2011, Plaintiff filed a motion for voluntary dismissal without prejudice, citing Fed. R. Civ. P. 41(a)(2). In that motion, she represented that "both parties (legal counsel) are agreeable to a [d]ismissal of this lawsuit without [p]rejudice."
(Doc. 24, CM/ECF p. 2).*fn1 She also asserted that she wanted to dismiss the case because she is occupied with moving her business out of North Carolina. Six days later, on July 27, 2011, construing the motion as a notice under Fed. R. Civ. P. 41(a)(1)(A)(i) for voluntary dismissal, we entered an order dismissing the case. In doing so, we noted that Defendants had not filed an answer or a motion for summary judgment.*fn2
We are considering two identical motions for reconsideration of that order filed by Defendants. Defendants invoke Fed. R. Civ. P. 60(b)(1) and 60(b)(6), which, respectively, permit a court to relieve a party from a final order based on "mistake, inadvertence, surprise or excusable neglect," or on "any other reason that justifies relief." Under Rule 60(b)(6), relief may be granted for an "extreme" or "unexpected hardship,"
"when the judgment precluded an adjudication on the merits." Budget Blinds, Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008)(internal quotation marks and quoted case omitted). Defendants also rely on Rohrbach v. AT&T Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), where the court said that a motion for reconsideration could be granted when the court "has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension."
In moving for reconsideration, Defendants argue as follows. First, our July 27 order was outside the adversarial issues presented because it was based on Plaintiff's false representation that Defendants had agreed that the case could be dismissed without prejudice. In fact, Defendants do not agree that the case should be dismissed. Second, if we do not vacate the order, they will suffer extreme or unexpected hardship by being prevented from having an adjudication on the merits of Plaintiff's dismissal motion under Rule 42(a)(2). Third, they will be deprived of a prompt adjudication of Plaintiff's claims, and they will be exposed to a lengthy period of potential liability until Plaintiff decides to file another suit, given the nature of the statute of limitations for some of her claims. Fourth, witnesses and evidence may not be available when Plaintiff does file another suit. Finally, Defendants argue that if the order is vacated, in opposing Plaintiff's Rule 42(a)(2) motion, they intend to ask that the case be dismissed with prejudice and that they be reimbursed for the attorney's fees and costs incurred in defending the action.
We will deny Defendants' motions. We were not misled by Plaintiff's assertion that Defendants concurred in dismissal. As noted in our order, dismissal was appropriate under Rule 41(a)(1)(A)(i) because no answer or motion for summary judgment had been filed. Plaintiff did style the document as a motion under Rule 41(a)(2), but Plaintiff is pro se, so we liberally construed the motion for what it really was, a notice of dismissal under Fed. R. Civ. P. 41(a)(1)(A)(i). See Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184 n.1 (3d Cir. 2009)(pro se litigants' pleadings are construed liberally); Ventura-Vera v. Dewitt, 417 F. App'x 591, 591-92 (8th Cir. 2011)(per curiam)(nonprecedential)(liberally construed, the pro se plaintiff's motion to dismiss was effectively a Rule 41(a)(1)(A)(i) notice of dismissal); Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977)(it is irrelevant that a pro se plaintiff's notice was styled as a motion rather than as a notice or that he invoked Rule 41(a)(2) instead of Rule 41(a)(1)(A)(i) if the motion was really a notice of dismissal under the latter rule); Little v. Trott & Trott, P.C., No. 09-1882, 2009 WL 4827441, at *1 (D.C. Dec. 14, 2009)(pro se plaintiff's motion to dismiss under Fed. R. Civ. P. 9(b) would be liberally construed as a Rule 41(a)(1)(A)(i) notice of dismissal); Carbajal v. Serra, No. 08-1131, 2009 WL 750409, at *1 (D. Colo. Mar. 18, 2009)(plaintiff's pro se motion to dismiss his complaint liberally construed as a Rule 41(a)(1)(A)(i) motion).
Rule 41(a)(1)(A)(i) establishes "a bright-line test" on a plaintiff's right to dismiss a case early in the litigation. In re Bath and Kitchen Fixtures Anti-Trust Litig., 535 F.3d 161, 165 (3d Cir. 2008)(internal quotation marks and quoted case omitted). A plaintiff is entitled to dismiss an action without prejudice if she has "never before dismissed an action based on or including the same claim; and (2) defendants had not served an answer or a motion for summary judgment." Id. Those circumstances are present here.*fn3 Therefore, dismissal is "automatic" and Plaintiff's right to it "unfettered." Id. (internal quotation marks and quoted case omitted). "'This is a matter of right running to the plaintiff and may not be extinguished or circumscribed by adversary or court.'" Id. at 166 (quoting Am. Cyanamide Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963)). Defendants therefore have no right to contest the dismissal or to impose conditions upon it.
We acknowledge that Defendants have incurred attorney's fees and costs in defending the action. The Third Circuit made the same observation in In re Bath and Kitchen Fixtures, 535 F.3d at 166 ("motions to dismiss may impose much labor and expense on parties and judges - sometimes they are as time-consuming as motions for summary judgment"). However, as the Third Circuit noted in that case, the rule was drafted to provide only two points of "no return," an answer or a motion for summary judgment, id. (internal quotation marks and quoted case omitted), and to decide otherwise "would . . . improper[ly] graft a new category onto the literal text of the Rule." Id. We add that the cases Defendants cite in support of their request for attorney's fees and costs, Andrew Myer Designs, LLC v. Hassan, No. 06-1095, 2006 WL 2251703 (E.D. Pa. Aug. 4, 2006), and Citizens Sav. Ass'n v. Franciscus, 120 F.R.D. 22 (M.D. Pa. 1988), involved Rule 41(a)(2), which deals with situations not covered by Rule 41(a)(1). As noted, Plaintiff may have invoked Rule 41(a)(2), but her motion was really a notice under Rule 41(a)(1)(A)(i).
We will issue an appropriate order.*fn4
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DEANNA KAY COLLINS, Plaintiff v. LINCOLN CAVERNS, INC., PATRICIA ANN DUNLAVY, ...