Clark et al v. Montoya et al

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/11/06
Antel Cordell Clark, et al. v. U.S. Department of Justice Office of The, et al.
04-01047
Order Granting in Part, Denying in Part [24-1] Motion To Dismiss Adversary
Proceeding w/o Prejudice by Antel Cordell Clark, Carmelita Clark, Plaintiffs .
Received on: 2004-11-03 09:49:12.000
2004-11-03 00:00:00.000
2004-11-03 00:00:00.000
Ellen Snyder
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: ANTEL CLARK and No. 7-03-15342 MA
CARMELITA CLARK,
Debtors.
_____________________________________________________________________________
ANTEL CLARK and
CARMELITA CLARK,
Plaintiffs,
v. Adv. No. 04-1047 M
THE U.S. DEPARTMENT OF JUSTICE OFFICE
OF THE UNITED STATES TRUSTEE DISTRICT
OF NEW MEXICO, PHILIP J. MONTOYA, and
RON E. ANDAZOLA
ORDER DENYING IN PART, AND GRANTING, IN PART, PLAINTIFFS’ MOTION TO
DISMISS WITHOUT PREJUDICE ADVERSARY CASE NUMBER 04-1047 M
THIS MATTER is before the Court on the Plaintiffs’ Motion to Dismiss Without Prejudice
Adversary Case Number 04-1047 (the “Motion to Dismiss Without Prejudice”) filed on August 19,
2004. Plaintiffs filed this Complaint on March 15, 2004 alleging several causes of action including
abuse of discretion, obstruction of justice, intentional discrimination, conspiracy against citizens rights,
intentional infliction of emotional and financial distress, and negligence,. Plaintiffs’ Complaint also
includes a claim for fraud against the Chapter 7 Trustee assigned to this bankruptcy case, Philip J.
Montoya (the “Trustee”) in connection with the Trustee’s actions in the Plaintiffs’ bankruptcy case. The
Plaintiffs also allege that the Defendant, Ron Andazola (“Andazola”), the Assistant United States
Attorney, Office of the United States Trustee for the District of New Mexico, failed to supervise the
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Trustee, and improperly allowed the Trustee to file a notice of no asset in this bankruptcy case.
Voluntary dismissals are governed by Rule 41(a), Fed.R.Civ.P., made applicable to adversary
proceedings by Rule 7041, Fed.R.Bankr.P. Pursuant to Rule 41(a)(1), Fed.R.Civ.P., a plaintiff may
voluntarily dismiss a proceeding without an order of the Court “at any time before service by the
adverse party of an answer or of a motion for summary judgment, whichever first occurs.” Rule
41(a)(1), Fed.R.Civ.P. If defendant has filed an answer or motion for summary judgment, a plaintiff
can dismiss a proceeding upon stipulation by the parties, or by court order. See Rule 41(a)(1) and (2),
Fed.R.Civ.P. Here, Defendant Philip J. Montoya filed an answer to Plaintiffs’ Complaint well before
Plaintiffs filed their Motion to Dismiss Without Prejudice, and opposes the Motion to Dismiss With
Prejudice. Therefore, Plaintiffs cannot dismiss this proceeding as to Defendant Philip J. Montoya
without a court order, implicating Rule 41(a)(2), Fed.R.Civ.P.
Under Rule 41(a)(2), Fed.R.Civ.P., an action may be dismissed upon a plaintiff’s request only
by Court order, and only “upon such terms as the court deems proper.” Plaintiffs assert that this Court
lacks jurisdiction over this adversary proceeding as grounds for dismissal. This Court’s jurisdiction is
governed by 28 U.S.C. § 157, which states that bankruptcy courts have jurisdiction in all core
proceedings arising under title 11, or arising in a case under title 11. Core matters include matters
concerning the administration of the bankruptcy estate. See 28 U.S.C. § 157(b)(2)(A). The
Complaint alleges causes of action against the defendants in connection with actions taken in their
bankruptcy case. Therefore, the Court has jurisdiction over this proceeding and will deny the Plaintiffs’
Motion to Dismiss Without Prejudice as to Defendant Philip J. Montoya.
Plaintiffs’ request for voluntary dismissal of their Complaint against Defendants U.S.
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Department of Justice and Ron E. Andazola must be granted. Defendants U.S. Department of Justice
and Ron E. Andazola have not filed an answer or a motion for summary judgment. Instead, these
Defendants filed a motion to dismiss in response to Plaintiffs’ Complaint. The filing of a motion to
dismiss fails to terminate Plaintiffs’ absolute right to voluntarily dismiss a proceeding under Rule
41(a)(1), Fed.R.Civ.P. See Aamot v. Kassel, 1 F.3d 441 (6th Cir. 1993) (holding that defendant’s
motion to dismiss under Rule 12(b)(6) did not preclude plaintiff’s voluntary dismissal under Rule
41(a)(1)); Carter v. United States, 547 F.2d 258 (5th Cir. 1977) (same).; Muller v. TSC Industries,
Inc., No. 92-4084-S, 1992 WL 223766, at *1 (D.Kan. 1992 August 26, 1992) (“Rule 41 establishes
a bright line rule and the filing of a motion to dismiss will not prevent the plaintiff from voluntarily
dismissing the case.”) (citing Exxon Corp. v. Maryland Casualty Co., 599 F.2d 659, 661 (5th
Cir.1979)). See also Netwig v. Georgia Pac. Co., 375 F.3d 1009, 1010 (10th Cir.2004) (under the
plain language of Rule 41(a)(1), when no answer or summary judgment motion has been filed, a plaintiff
has the right to voluntarily dismiss his case without court order); Janssen v. Harris, 321 F.3d 998,
1000 (10th Cir.2003) (Under Rule 41(a)(1), "a plaintiff has an absolute right to dismiss [his case]
without prejudice").
A motion to dismiss is neither an answer nor, unless accompanied by affidavits discussing
matters outside the pleadings that are not excluded by the court, a motion for summary
judgment; thus, unless formally converted into a motion for summary judgment under Rule 56,
a motion to dismiss under Rule 12 does not terminate the right of dismissal by notice.
9 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2363
This is true notwithstanding the effort spent by Defendants in preparing their motion to dismiss. See
Carter v. United States, 547 F.2d at 259.
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WHEREFORE, IT IS HEREBY ORDERED that the Motion to Dismiss Without Prejudice is
hereby DENIED as to Defendant Philip J. Montoya and GRANTED as to Defendants U.S.
Department of Justice and Ron E. Andazola.
MARK B. McFEELEY
UNITED STATES BANKRUPTCY JUDGE
I certify that on the date shown on the attached document verification, a true and correct copy of
the foregoing was either electronically transmitted, faxed, delivered or mailed to the listed counsel
and/or parties.
Antel Clark and Carmelita Clark Manuel Lucero
12021 Skyline Dr. NE Assistant U.S. Attorney
Albuquerque, NM 87123 PO Box 607
Albuquerque, NM 87103
George Moore
Attorney for Philip J. Montoya
PO Box 216
Albuquerque, NM 87103
Ellen C. Snyder
Law Clerk
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