
USCA1 Opinion

	




          August 15, 1994       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2268                                         MARTA VELEZ VDA DE FONTANEZ,                                Plaintiff, Appellant,                                          v.                       JEFFERSON PILOT LIFE INSURANCE COMPANY,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________               Jose  L.  Delgado Cadilla  and Castro  & Delgado  Cadilla on               _________________________      __________________________          brief for appellant.               Jose Hector Vivas and Vivas & Vivas on brief for appellee.               _________________     _____________                                  __________________                                  __________________                      Per   Curiam.    Plaintiff  requested  a  voluntary                      ____________            dismissal  without prejudice.   The district  court "granted"            plaintiff's motion,  but dismissed with  prejudice and denied            plaintiff's motion for reconsideration, which objected to the            dismissal with prejudice.   Plaintiff has appealed from those            orders.                   While  neither  the  plaintiff nor  the  district  court            referred  to  any  particular  rule,  we  conclude  that  the            dismissal plaintiff  requested,  and the  court entered,  was            pursuant to Fed. R. Civ. P.  41(a)(2) (voluntary dismissal by            order of court), as there is no basis in the record before us            for an involuntary dismissal under Fed. R. Civ. P. 41(b).  We            conclude that  the court abused its  discretion in dismissing            with prejudice without first giving plaintiff the opportunity            to withdraw  her request for  voluntary dismissal.   In  this            regard, we agree generally with the discussions in Gravatt v.                                                               __________            Columbia University, 845 F.2d 54,  55-56 (2d Cir. 1988),  and            ___________________            Andes  v. Versant Corp., 788 F.2d 1033, 1037 (4th Cir. 1986),            ______________________            that if a plaintiff's motion to  dismiss without prejudice is            to  be denied, the  plaintiff ordinarily should  be given the            opportunity  to allow  the  case to  proceed  on the  merits,            rather than being subjected to a dismissal with prejudice.                 Plaintiff  asks that  we  direct the  district court  to            dismiss without  prejudice.  We will not do so because on the            present  record we can not say that plaintiff was entitled as                                         -2-            a  matter  of  law  to  an  unconditional  dismissal  without            prejudice.     We summarily vacate the order of dismissal and            remand for further proceedings consistent with this  opinion.            Loc. R. 27.1.                 Vacated and remanded.                 ____________________                                         -3-
