Intl Driver Training v. J-BJRD Inc, et al

United States Court of Appeals
Fifth Circuit
F I L E D
October 16, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-10414
Summary Calendar
_______________
INTERNATIONAL DRIVER TRAINING INC.,
Plaintiff-Appellant,
VERSUS
J-BJRD INC.; BILL CLINTON DODGIN,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:05-CV-2194
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
PER CURIAM:*
Plaintiff International Driver Training Inc.
(“IDT”) filed a notice of dismissal pursuant to
Federal Rule of Civil Procedure 41(a)(1)(i). In
its order of dismissal, the district court added
conditions that IDT must meet if it chooses to
re-file in the Northern District of Texas.
Because the district court lacked jurisdiction
to take any action other than dismissal, we re-
verse and grant IDT unconditional dismissal
without prejudice.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

-- 1 of 3 --

I.
Before either defendant had filed an answer
or other pleading, IDT filed its notice of dis-
missalwithout prejudice under rule 41(a)(1)(i).
The district court signed an order dismissing
the case “without prejudice” but adding the
following language: “If InternationalDriver re-
files this case in the Northern District of
Texas, Dallas Division, the complaint must be
filed in Judge Ed Kinkeade’s Court, and the
Plaintiff shall give Defendant notice of this Or-
der if this case is re-filed in any form.” IDT
appeals that order, alleging that the court was
without power to attach conditions to its
dismissal.
II.
Rule 41(a)(1) states 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,
whichever first occurs . . . .” FED R. CIV. P.
41(a)(1). Although there are exceptions for
several specific actions and statutes, none of
which is presently relevant, “a plaintiff's right
to file a notice of dismissal under Rule 41(a)-
(1)(i) before the service of an answer or mo-
tion for summary judgment is absolute and un-
conditional.” 8 JAMES W. MOORE ET AL.,
MOORE’S FEDERAL PRACTICE § 41.33[2], at
41-48 (Matthew Bender 3d ed. 2006) (citing
Carter v. United States, 547 F.2d 528, 529
(5th Cir. 1977)). Dismissal pursuant to rule
41(a)(1)(i) is “a matter of right running to the
plaintiff and may not be extinguished or cir-
cumscribed by adversary or court.” Am. Cy-
anamid Co. v. McGhee, 317 F.2d 295, 297
(5th Cir. 1963).
A notice of dismissal under Rule 41 is “self-
executing,” see 8 MOORE, supra, § 41.33-
[6][a], at 41-82, so there is no need even for
“a perfunctory order of court closing the file.”
Am. Cyanmid, 317 F.2d at 297. The plaintiff
“suffers no impairment beyond his fee for
filing.” Id. The effect of the dismissal is “to
put the plaintiff in a legal position as if he had
never brought the suit.” Harvey Specialty &
Supply Inc. v. Anson Flowline Equipment,
Inc., 434 F.3d 320, 324 (5th Cir. 2005) (citing
LeCompte v. Mr. Chip, Inc., 528 F.2d 601,
603 (5th Cir. 1976)). Once a plaintiff has filed
a proper rule 41 notice, “any further action by
the district court [is] neither necessary nor of
any effect.” Scam Instrument Corp. v. Control
Data Corp., 458 F.2d 885, 889 (7th Cir.
1972).
IDT filed its notice of dismissal within the
guidelines provided by rule 41(a)(1)(i). Once
the order of dismissal was filed, the case ef-
fectively ceased. The district court was there-
after without jurisdiction to take further ac-
tion, including placing limits on IDT’s right to
file in the future.1
It is possible that IDT’s objection to the
requirement that any re-filed case be filed in
Judge Kinkeade’s court is that IDT is cha-
grined at having drawn Judge Kinkeade at ran-
dom and would prefer to have this case as-
signed to a different judge in the Northern Dis-
trict of Texas. If that is so, IDT might re-file
the case for the sole purpose of drawing a
judge it views as more favorable. We do not
approve of such a raw attempt at forum-shop-
ping. Any district courtSSincluding the North-
ern District of Texas in respect to this caseSSis
free to prohibit such a practice and to require
1 See 8 MOORE, supra, § 41.33[3], at 41-50
(“Unlike Rule 41(a)(2), Rule 41(a)(1) does not
contain a provision authorizing the imposition of
‘terms and conditions’ on a dismissal. The court
thus lacks power to impose any conditions on a
dismissal made by notice.”). Cf. LeCompte, 528
F.2d 601 (reversing order of dismissal imposing the
condition, among others, that “any subsequent suit
must be filed in the same court”).

-- 2 of 3 --

that a re-filed action be assigned to the original
judge, or to require that if a re-filed case is
assigned to a different judge, that judge shall
transfer the case to the original judge. Al-
though rule 41(a)(1) guarantees IDT an un-
conditional dismissal, it does not confer on
IDT the right to manipulate the designation of
a judge.
The conditioned order of dismissal is
VACATED, and an unconditionalorder of dis-
missal is RENDERED, in accordance with this
opinion.2
2 Any worry that the grant of a dismissal with-
out prejudice might allow an undue advantage to
the plaintiff is addressed, also in rule 41(a)(1), by
the provision that “a notice of dismissal operates as
an adjudication upon the merits when filed by a
plaintiff who has once dismissed in any court of the
United States or of any state an action based on or
including the same claim.” FED. R. CIV. P.
41(a)(1).

-- 3 of 3 --