Summary
holding that even a defendant's motion to dismiss for lack of subject matter jurisdiction or failure to state a claim does not deprive a plaintiff of its right to voluntarily dismiss its claims under Rule 41
Summary of this case from Pharm. Care Mgmt. Ass'n v. Dist. of ColumbiaOpinion
Civil Action No. 1:04-CV-01027 (RBW).
June 28, 2005
ORDER
Currently before the Court is the defendant's Motion to Dismiss for Lack of Jurisdiction ("Def.'s Mot.") [D.E. #5], the plaintiff's Motion to Voluntarily Dismiss Plaintiff's Complaint Without Prejudice ("Pl.'s Mot.") [D.E. #7], the Defendant's Motion to Have Defendant's Motion to Dismiss Taken as Conceded and Opposition to Plaintiff's Motion to Voluntarily Dismiss Plaintiff's Complaint Without Prejudice ("Def.'s Opp'n") [D.E. #8], and the plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion to Voluntarily Dismiss Plaintiff's Complaint Without Prejudice ("Pl.'s Reply"). For the following reasons, this Court grants the plaintiff's motion to voluntarily dismiss the complaint without prejudice, and denies the defendant's motion to have its motion to dismiss taken as conceded. Because the Court will grant the plaintiff's motion to voluntarily dismiss the complaint, the Court need not address the merits of the defendant's motion to dismiss for lack of jurisdiction and it will be denied as moot.
I. Background
The plaintiff, Black Ride III, Inc. ("Black Ride"), brought this action against the defendant, Brian D. West, for breach of contract and fraud. Complaint ("Compl.") ¶¶ 1, 4, 7. The events underlying this dispute arose on the evening of January 10, 2004, and the early morning hours of January 11, 2004, when the defendant was a patron of the plaintiff's establishment, the Nexus Gold Club, which is a restaurant, bar and gentlemen's club located here in Washington D.C. Compl. ¶¶ 5, 7. The plaintiff alleges that during that time period the defendant made seven separate purchases on five different credit cards, totaling $33,264. Compl. ¶¶ 8, 9. According to the plaintiff, the defendant had signed a contract authorizing each of the purchases to be charged to the credit cards he presented after verifying his identity with the use of his Virginia driver's license, and permitted the taking of his thumbprint to initiate these purchases. Compl. ¶ 15. Specifically, the plaintiff claims that prior to each transaction the defendant made a contract with the plaintiff to "[f]orfeit any claim of fraud or deceit and request [that the credit card] charge be authorized." Compl. ¶ 16. However, the defendant allegedly breached this contract by disputing his authorization for the credit card purchases in the weeks following the transactions in question. Compl. ¶¶ 29, 36.In addition, the plaintiff alleges that the defendant represented that he had the funds necessary to purchase the services he ordered as a patron at the plaintiff's establishment and that he committed fraud by denying his prior authorization for the credit card transactions and deliberately misstated facts to his creditors for the purpose of evading financial responsibility for the transactions in question. Compl. ¶¶ 47, 53. Specifically, the plaintiff contends that after receiving a mailgram from American Express regarding one of the credit cards the defendant used at the plaintiff's establishment, the defendant contacted both his credit card companies explaining that he never received any goods or services associated with the charges made at the Nexus Gold Club on January 10 or 11, 2004. Compl. ¶¶ 49, 50. Furthermore, the plaintiff claims that the defendant made these statements to the credit card companies "with the intent to deceive [the p]laintiff" because the defendant "was cognizant that reliance would be placed on his fraudulent misrepresentations." Compl. ¶¶ 54, 55. Consequently, the plaintiff complains that it became solely liable for the defendant's purchases and was forced to pay for the defendant's breach of contract and fraud by compensating its employees for services rendered to the defendant. Compl. ¶¶ 22, 51, 52. Accordingly, the plaintiff requests compensatory damages in the amount of $100,000, attorney's fees and costs, as well as any other relief that may be just for the damages incurred by the defendant. Compl. ¶¶ 59-62.
The plaintiff used both American Express and MasterCard credit cards on the evening in question. Compl. ¶ 8.
In response to the complaint, the defendant filed a motion to dismiss for lack of jurisdiction. Def.'s Mot at 1. The defendant contends that jurisdiction in this Court is inappropriate for three reasons. Id. First, the defendant argues that jurisdiction is not proper because a consumer complaint had already been filed by the defendant, which requires dismissal pursuant to D.C. Code Ann. § 28-3905(K)(4) (2001). Id. Second, the defendant posits that jurisdiction is lacking because the plaintiff is unable to recover the amount claimed and therefore cannot satisfy the $75,000 prerequisite necessary for this Court to exercise diversity jurisdiction. Id. at 1-3. Third, the defendant contends that the plaintiff does not have the legal capacity to pursue this action because it forfeited its corporate charter on April 8, 2004. Id. at 4-5. Rather than responding to this motion, the plaintiff filed a motion to voluntarily dismiss the complaint without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). Pl.'s Mot. ¶ 1. The plaintiff moved to voluntarily dismiss the complaint because it had received payment for the purchases at issue since filing its action. Id. ¶¶ 3, 4.
The defendant opposes the plaintiff's motion and requests that its motion to dismiss be considered conceded. Def.'s Opp'n at 1. The defendant's opposition is based on the plaintiff's failure to oppose the defendant's motion to dismiss for lack of jurisdiction within eleven days as required by Local Rule 7(b). Def.'s Opp'n at 2. Furthermore, the defendant disputes the fact that he has paid for the purchases that are the subject of the plaintiff's complaint. Id. ¶ 6. Consequently, the defendant argues that under Federal Rule of Civil Procedure 41(a)(1), the plaintiff is not entitled to dismissal as a matter of right. Id. ¶¶ 7-8.
II. The Plaintiff's Motion to Voluntarily Dismiss
Pursuant to Rule 41(a)(1), "an action may be dismissed by a plaintiff without an order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs. . . ." Fed.R.Civ.P. 41(a)(1). Dismissals under Rule 41(a)(1) "generally [are] granted in the federal courts unless the defendant would suffer prejudice [resulting from] the prospect of a second lawsuit or some tactical disadvantage." Conafay v. Wyeth Labs., 793 F.2d 350, 353 (D.C. Cir. 1986). Here, the defendant contends, however, that the plaintiff forfeited its right to dismiss the case without a court order by failing to timely respond to the defendant's motion to dismiss for lack of jurisdiction. Def.'s Opp'n at 2. Specifically, the defendant cites Local Rule 7(b), which provides that "[w]ithin 11 days of the date of service or at such other time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion." Id.; LCvR 7(b). Furthermore, the Rule states that "[i]f such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded." LCvR 7(b) (emphasis added); Def.'s Opp'n at 2.
An alternative avenue of dismissal under Rule 41(a)(2) is "upon order of the court and upon such terms and conditions as the court deems proper." Fed.R.Civ.P. 41(a)(2); see Taragan v. Eli Lilly Co., 838 F.2d 1337, 1339 (D.C. Cir. 1988) and initially, in the plaintiff's motion to voluntarily dismiss its complaint without prejudice, the plaintiff moved for dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2). Pl.'s Mot. ¶ 1. Specifically, the plaintiff requested that the Court dismiss this action "upon order of the court and upon such terms and conditions, as the court deems proper." Fed.R.Civ.P. 41(a)(2); Pl.'s Mot. ¶ 1. However, that position has been abandoned and the plaintiff now only moves for voluntarily dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1) in its reply to the defendant's opposition to its initial motion.
Despite the plaintiff's failure to respond to the defendant's motion to dismiss for lack of jurisdiction, Rule 41(a)(1) explicitly allows a plaintiff to voluntarily dismiss its case provided that the defendant has not served the adverse party with an answer or a motion for summary judgment. Fed.R.Civ.P. 41(a)(1). This Court and others have adopted the position that "for the purpose of Rule 41(a)(1), a converted Rule 12(b)(6) motion to dismiss is properly to be treated as a motion for summary judgment." Chambers v. Gesell, 120 F.R.D. 1, 2 (D.D.C. 1988) (citing Exxon Corp. v. Md. Casualty Comp., 599 F.2d 659, 661 (5th Cir. 1979)). Accordingly, a defendant's 12(b)(6) motion to dismiss, if supported by matters outside the pleading, deprives a plaintiff of the right of voluntary dismissal. See Chambers, 120 F.R.D. at 2. However, it is only a motion asserting the failure to state a claim upon which relief can be granted that "defeats [a] plaintiff's right to voluntary dismissal under Fed.R.Civ.P. 41(a)(1)." Chambers, 120 F.R.D. at 2 n. 4 (quoting Hasse v. Sessions, Dir. of FBI, 835 F.2d 902 (D.C. Cir. 1987); see also Riley v. Titus, 190 F.2d 653, 656 n. 1 (D.C. Cir. 1951). Therefore, a "motion to dismiss for lack of jurisdiction over the subject matter is not so converted. . . ." Riley, 190 F.2d at 656 n. 1. Accordingly, this Court will not construe the defendant's motion to dismiss for lack of jurisdiction as a motion which deprives the plaintiff of its right to voluntarily dismiss this case. Moreover, because the defendant has neither answered the complaint nor filed a motion for summary judgment, the plaintiff is entitled, pursuant to Rule 41(a)(1), to voluntarily dismiss this action without prejudice and without an order from this Court. Fed.R.Civ.P. 41(a)(1); see also Chambers, 120 F.R.D. at 2; Compl. at 1.
III. Conclusion
For the aforementioned reasons, the plaintiff's motion to dismiss its complaint without prejudice is granted and the defendant's motion to have its motion to dismiss considered conceded is denied.
SO ORDERED.