United States District Court, M.D. North Carolina
CARLTON TILLEY, JR. SENIOR UNITED STATES DISTRICT JUDGE
Corey Alan Novosel filed this action against Jamella Patrice
White alleging negligence and Erie Insurance Company
(“Erie”) alleging breach of contract.
(See Compl. [Doc #1].) This matter is before the
Court on Novosel's Motion for Dismissal Without Prejudice
(“Novosel's Motion”) [Doc. #15.], White's
Motion to Dismiss in Lieu of an Answer (“White's
Motion”) ([Doc. #9]), and Erie's Motion to Dismiss
for Failure to State a Claim or in the Alternative Lack of
Subject Matter Jurisdiction (“Erie's Motion”)
[Doc. #12]. For the reasons explained below, Novosel's
Motion is GRANTED and White's Motion to Dismiss and
Erie's Motion to Dismiss are denied as moot.
April 3, 2019, Novosel filed his Complaint, alleging
negligence and breach of contract stemming from an automobile
accident in Cabarrus County, North Carolina. (See
generally Compl.) Novosel alleged that White's
negligent driving caused her vehicle to collide with another
vehicle insured by Erie in which Novosel was a passenger.
(Id. ¶¶ 9-12, 30.) Novosel further alleged
that Erie breached a contract “by failing to make
payment to [him] under the uninsured/underinsured motorist
provision of the applicable insurance policy.”
(Id. ¶ 33.)
18, 2019, White filed a motion to dismiss to which she
attached a release executed by Novosel and Ife Allette, the
driver of the vehicle in which Novosel was a passenger.
(White's Mot. [Doc. #10]; White's Mot. Attach. 1
[Doc. #10-1].) On June 25, 2019, Erie moved to dismiss the
Complaint and attached an insurance policy, which covered
Novosel as the driver of a 2015 Dodge Challenger and Allette
as the driver of a 2014 Honda Accord EX. ((Erie's
Mot.”) [Doc. #13]; Erie's Mot. Attach. 1 [Doc.
briefing on those two motions closed, Novosel moved to
dismiss his complaint without prejudice on July 16, 2019.
(Novosel's Mot. at 1.) White responded in support of the
dismissal but objected to Novosel's ability to refile a
claim against her. (See White's Resp. at 1-2
[Doc. #16].) In support of her argument, White attached the
signed release executed by Novosel and Allette, arguing that
their execution of the release acted as “a full and
complete release” against her for all claims arising
from the accident. (Id. at 1.) Erie failed to
respond to Novosel's Motion, and Novosel did not reply to
White's argument. (See generally Docket.)
seeks a voluntary dismissal without prejudice. A voluntary
dismissal “is designed to permit a disengagement of the
parties at the behest of the plaintiff only in the early
stages of a suit, before the Defendant has expended time and
effort in the preparation of [the] case.” Armstrong
v. Frostie Co., 453 F.2d 914, 916 (4th Cir. 1971). Under
Federal Rule of Civil Procedure 41, when a plaintiff files a
notice of dismissal prior to a defendant's filing either
an answer or a motion for summary judgment, the plaintiff
“may dismiss an action without a court order.”
Fed.R.Civ.P. 41(a)(1)(A)(i); see Finley Lines Joint
Protective Bd. Unit 200, Bhd. Ry. Carmen, a Div. of
Transp. Commc'ns Union v. Norfolk S. Corp., 109 F.3d
993, 994 (4th Cir. 1997) (reversing the district court's
decision to vacate plaintiffs' notice of voluntary
dismissal because “at the time plaintiffs filed the
notice, defendants had not answered the complaint, moved for
summary judgment, or filed a motion to dismiss that had been
treated as a motion for summary judgment”).
neither defendant has filed an answer, but both have moved to
dismiss pursuant to Rule 12(b)(6) and Erie has also moved in
the alternative to dismiss for lack of subject matter
jurisdiction. The issue is whether either of their motions
should be considered as a motion for summary judgment. When
applying the plain language of Rule 12(b)(6) and Rule 41, a
defendant's filing of a motion to dismiss under Rule
12(b)(6) does not constitute a motion for summary judgment
under Rule 41(a)(1)(A)(i) unless the defendant submits
“matters outside the pleadings” that are
“not excluded by the court.” See Fed. R.
Civ P. 12(d); see also Marex Titanic, Inc. v. The Wrecked
& Abandoned Vessel, 2 F.3d 544, 546 (4th Cir. 1993)
(applying the plain language of Rule 41 and explaining that
“'[w]e give the Federal Rules of Civil Procedure
their plain meaning'” (citing Pavelic &
LeFlore v. Marvel Entm't Grp., 493 U.S. 120, 123
(1989))). Thus, the discretion resides with the court to
determine whether to consider extraneous materials that would
convert a motion to dismiss into a motion for summary
judgment. See Finley, 109 F.3d at 995-96 (examining
“the proper interpretation and interrelation of Rule
41(a)(1)(i) and Rule 12(b)(6)”, and explaining that
“automatically convert[ing]” a motion to dismiss
that attaches matters outside the pleadings into a motion for
summary judgment at the time of service would contravene the
discretion granted to the court under Rule 41(a)(1)).
White attached a signed release to her motion, and Erie
attached an insurance policy to its motion. Exercising its
discretion, the Court declines to consider the release or the
insurance policy, and, thus, neither motion will be converted
into one for summary judgment.
the Defendants' motions are merely those pursuant to Rule
12, they were filed before Novosel moved for
dismissal. When addressing the interplay of Rule 12 and Rule
41, the Fourth Circuit has explained:
Rule 41(a)(1)(i) itself provides a defendant who wishes to
“avoid wasting time or money” and “preclude
future prejudice to its interests” with a simple remedy
to prevent a plaintiff from sua sponte dismissing an action
without prejudice: the defendant can file an answer or move
for summary judgment. (citations omitted) If a defendant
fails to pursue this remedy, it cannot circumvent the rule
simply by serving the plaintiff with a motion to dismiss,
supported by extraneous materials. A plaintiff confronted
with such a response is free to invoke Rule 41(a)(1)(i).
Finley, 109 F.3d at 997.
even when a plaintiff files a motion for voluntary dismissal
after “apparently believing that [Defendants']
filing of a Rule 12(b)(6) motion ended [the] right of
voluntary dismissal under Rule 41(a)(1)(i)”, a
voluntary dismissal under Rule 41(a)(1)(i) is proper when
neither an answer nor a motion for summary judgment has been
filed. Moore v. Davis, 72 F.R.D. 96, 97 (M.D. N.C.
1976) cited with approval in Kaplan Early Learning Co. v.
Midbar Kodesh Temple, No. 1:03CV714, 2004 WL 1125433, at
*1 (M.D. ...