Opinion
CIVIL ACTION No. 03-2098-CM
December 16, 2003
MEMORANDUM AND ORDER
Plaintiff Patrice Townsend and at least thirty additional individuals filed a Complaint naming as defendants the "Kansas City Board of Public Utilities for the City of Kansas City, Kansas and its elected board (six member) and its General Manager, Leon Daggett / and the Unified Government of Wyandotte County." In their Complaint, the plaintiffs, who currently appear pro se, allege race and national origin discrimination and retaliation under Title VII of the Civil Rights Act of 1964.
On July 16, 2003, defendant Board of Public Utilities for the City of Kansas City, Kansas filed Motions to Dismiss (Docs. 16 17). On September 19, 2003, plaintiffs filed a Motion for Extension of Time to File Response (Doc. 32), requesting additional time in which to respond due to their inability to obtain legal counsel. The court granted plaintiffs' request, and ordered plaintiffs to respond by November 26, 2003. On November 21, 2003, plaintiffs filed a Motion for Leave for Dismissal (Doc. 42). Plaintiffs seek dismissal without prejudice of all their claims against all defendants in the pending lawsuit. Defendants urge the court to grant defendants' pending Motion to Dismiss on the merits or, in the alternative, to grant dismissal with prejudice.
Under Federal Rule of Civil Procedure 41(a)(1)(i), a plaintiff has an absolute right to dismiss without prejudice, and no action is required on the part of the court. Rule 41(a)(1) provides that "an action may be dismissed by the plaintiff without 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." As explained by the Tenth Circuit in Janssen v. Harris:
The [filing of a Rule 41(a)(1)(i) notice] itself closes the file. There is nothing the defendant can do to fan the ashes of that action into life and the court has no role to play. This is a matter of right running to the plaintiff and may not be extinguished or circumscribed by adversary or court. There is not even a perfunctory order of court closing the file. Its alpha and omega was the doing of the plaintiff alone. The effect of the filing of a notice of dismissal pursuant to Rule 41(a)(1)(i) is to leave the parties as though no action had been brought. Once the notice of dismissal has been filed, the district court loses jurisdiction over the dismissed claims and may not address the merits of such claims or issue further orders pertaining to them.321 F.3d 998, 1000 (10th Cir. 2003) (construing "Acknowledgment of Plaintiff's Pro se Letter Request for Dismissal Without Prejudice" as a request for dismissal pursuant to Rule 41(a)(1)).
Plaintiffs' Motion for Leave for Dismissal was filed before service of an answer or motion for summary judgment. As such, the court construes plaintiffs' motion as a notice of dismissal under 41(a)(1). This action was therefore dismissed without prejudice on November 21, 2003, the date upon which plaintiffs filed their Motion for Leave for Dismissal (Doc. 42).