United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
F. SAPORITO JR. UNITED STATES MAGISTRATE
September 27, 2017, the petitioner, appearing through
counsel, filed a petition for a writ of habeas corpus
submitted pursuant to 28 U.S.C. § 2241. (Doc. 1). On
November 2, 2017, exercised its discretion under Rule 1(b) of
the Rules Governing Section 2254 Cases in the United States
District Courts, 28 U.S.C. foil. § 2254, to apply those
rules to this § 2241 petition, ordered that the petition
be served upon the respondent in accordance with Rule 4, 28
U.S.C. foil. § 2254, and directed the respondent answer
the petition within twenty-one days. (Doc. 2).
November 6, 2017, again acting through counsel, the
petitioner filed a motion to dismiss without prejudice. (Doc.
3). An attachment to the motion-the written instructions of
the petitioner to his attorney- suggests that the petitioner
wishes to discontinue this habeas action in light of recent
developments in the underlying immigration proceedings.
motion does not cite the rule itself, but it is clear that
the intent of this motion is to effect the voluntary
dismissal of this action, without prejudice, pursuant to Rule
41(a)(1) of the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 41(a)(1); Fed.R.Civ.P. 81(a)(4)
(applying Federal Rules of Civil Procedure to habeas
proceedings); R. 12, 28 U.S.C. foil. § 2254 (same);
see also Bezarez v. Pierce, 107 F.Supp.3d 408,
415-16 (D. Del. 2015) (applying Rule 41(a) to federal habeas
41(a)(1) allows a [petitioner] who complies with its terms to
dismiss an action voluntarily and without court
intervention." Manze v. State Farm Ins. Co.,
817 F.2d 1062, 1065 (3d Cir. 1987). Specifically, Rule
41(a)(1) provides, in relevant part:
[T]he [petitioner] may dismiss an action without a court
order by filing... a notice of dismissal before the opposing
party serves either an answer or a motion for summary
judgment.... Unless the notice or stipulation states
otherwise, the dismissal is without prejudice. But if the
[petitioner] 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(a)(1).
exception, the effect of the filing of a Rule 41(a)(1) notice
of voluntary dismissal before service of an answer or a
motion for summary judgment is "automatic: the
[respondent] does not file a response, and no order of the
district court is needed to end the action." In re
Bath & Ktichen Fixtures Antitrust Litig., 535 F.3d
161, 165 (3d Cir. 2008). Moreover, "the notice results
in dismissal without prejudice (unless it states otherwise),
as long as the plaintiff has never dismissed an action based
on or including the same claim in a prior case."
Id. "[T]he [respondent] has only two options
for cutting off the [petitioner]'s right to end the case
by notice: serving on the [petitioner] an answer or a motion
for summary judgment." Id.
Third Circuit has further explained:
The Rule "affixes a bright-line test to limit the right
of dismissal to the early stages of litigation, " which
"simplifies the court's task by telling it whether a
suit has reached the point of no return. If the [respondent]
has served either an answer or a summary judgment motion it
has; if the [respondent] has served neither, it has
not." Up to the "point of no return, "
dismissal is automatic and immediate-the right of the
[petitioner] is "unfettered." A timely notice of
voluntary dismissal invites no response from the district
court and permits no interference by it. A proper notice
deprives the district court of jurisdiction to decide the
merits of the case.
Id. at 165-66 (citations omitted) (quoting other
the respondent has not filed an answer to the petition or a
motion for summary judgment, the petitioner's motion to
dismiss without prejudice, treated as a Rule 41(a)(1) notice
of voluntary dismissal, is "self-effectuating" and
thus acts to terminate the action. See Aamot v.
Kassel,1 F.3d 441, 445 (6th ...