
USCA1 Opinion

	




          September 26, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCIUT                                 ____________________        No. 94-2276                            JUAN RAMON MATTA-BALLESTEROS,                                Plaintiff, Appellant,                                          v.                          UNITED STATES OF AMERICA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Lynch, Circuit Judges.                                            ______________                                 ____________________            Juan Ramon Matta-Ballesteros on brief pro se.            ____________________________            Guillermo Gil, United States Attorney,  and Fidel A. Sevillano Del            _____________                               ______________________        Rio, Assistant United States Attorney, on brief for appellees.        ___                                 ____________________                                 ____________________                      Per Curiam.   Plaintiff-appellant Juan Ramon  Matta                      __________            Ballesteros  ("Matta"),  appeals  pro  se  from the  district                                              ___  __            court's dismissal  of his action  "with prejudice"  following            his Notice of Voluntary Dismissal pursuant to Fed. R. Civ. P.            41(a)(1)(i).     We  vacate  the  district  court's  judgment            dismissing   the  case   with  prejudice   and  remand   with            instructions to dismiss the case without prejudice.                 I. Timeliness of Appeal                    ____________________                 Defendants-appellees, the  United States of  America, et            al.,  argue  that Matta's  appeal is  untimely and  should be            dismissed for lack of jurisdiction.  We disagree.  In a civil            case such as this in which the United States or an officer or            agency thereof is a party,  a notice of appeal must  be filed            within sixty days after entry  of the judgment appealed from.            See Fed. R.  App. P. 4(a)(1).   A timely  motion pursuant  to            ___            Fed. R. Civ. P. 59(e) tolls the running of the appeal period.            See Fed. R. App. P. 4(a)(4).  "The timeliness of a Rule 59(e)            ___            motion is determined by the date of service, not the date  of            filing." Air Line Pilots  Ass'n v. Precision Valley Aviation,                     ______________________    __________________________            Inc., 26 F.3d 220, 223 n.3 (1st Cir. 1994).            ____                 The district court judgment dismissing Matta's case with            prejudice was entered on September 8, 1994.  Matta served his            motion  to reconsider by mail on September 13, 1994. See Fed.                                                                 ___            R. Civ. P. 5(b)  (service by mail is complete  upon mailing).            Therefore,  service of the motion  occurred within 10 days of            the entry of the district court's judgment and the motion was            timely. See Fed. R. Civ. P. 59(e).  Given  the timely  filing                    ___            of Matta's motion to  reconsider, the sixty-day appeal period            began  to run  on November 21,  1994, the  date on  which the            district court's  denial of  the motion  was entered.   Matta            filed his notice  of appeal on  December 5,  1994, and it  is            therefore timely with  respect to both  the dismissal of  his            case and the denial of his motion to reconsider. Accordingly,            this court has jurisdiction to consider Matta's appeal.                 II. Dismissal with Prejudice                     ________________________                 Matta argues that the  district court violated the clear            meaning  of Fed.  R. Civ.  P. 41(a)(1)(i)  in dismissing  his            complaint  "with prejudice"  instead  of  without  prejudice.            Rule 41(a)(1)(i) provides, in relevant part, as follows:                 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, . .                 ______________________________________________                 .  .  Unless  otherwise  stated in  the  notice  of                 dismissal  or stipulation, the dismissal is without                                                             _______                 prejudice, . . . .                 _________            (emphasis added).                   Matta  filed a Notice  of Dismissal pursuant  to Fed. R.            Civ.  P. 41(a)(1)(i)  on  August 30,  1994.   At  that  time,            defendants had filed a motion to dismiss (on August 4, 1994).            Defendants had  not filed, however,  either an answer  to the            complaint or a motion for summary judgment.   Therefore, "the            plaintiff had the  right voluntarily to  dismiss the case  at                                         -3-            any  time before an answer  or a motion  for summary judgment            was served.  The plaintiff  properly invoked that  right, and            the district court had no  power to condition its dismissal."            Universidad  Central del  Caribe,  Inc. v.  Liaison Comm.  on            _______________________________________     _________________            Medical  Educ., 760  F.2d 14,  19 (1st  Cir. 1985).  See also            ______________                                       ___ ____            Manze v. State Farm Ins. Co., 817 F.2d 1062, 1065-67 (3d Cir.            _____    ___________________            1987)  (reversing dismissal  of  claim  with prejudice  where            defendant had filed a motion to dismiss  prior to plaintiff's            notice of  voluntary dismissal, but had  neither answered the            complaint nor moved for summary judgment).                 The judgment  of the district court  dismissing the case            with  prejudice is  vacated  and the  case  is remanded  with                                _______                    ________            instructions to dismiss the case without prejudice.  Costs to            appellant.                                                            -4-
