     Case: 17-11522   Document: 00514827110     Page: 1   Date Filed: 02/07/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit


                                 No. 17-11522                         FILED
                                                                February 7, 2019
                                                                 Lyle W. Cayce
LONNIE KADE WELSH,                                                    Clerk

             Plaintiff - Appellant

v.

CORRECT CARE. L.L.C.; MARSHA MCLANE, TCCO Executive Director;
MICHAEL SEARCY; BILL VANIER; JANIE SALAZAR; MARY LEAKS;
BRIAN THOMAS, in his Individual Capacity as Director of TCCC; AMY
GOLDSTEIN, in her Individual Capacity as Head of Clinical Operations at
TCCC; CHRISTOPHER WOODS, in his Individual Capacity as Security
Director at TCCC,

             Defendants - Appellees


                Appeal from the United States District Court
                     for the Northern District of Texas


Before DAVIS, JONES, and DENNIS, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      Lonnie Kade Welsh appeals from an order dismissing his case with
prejudice after his attempt to dismiss unilaterally without prejudice. Because
the dismissal with prejudice was erroneous, we VACATE and REMAND.
                                      I.
      Welsh filed a state court action against Correct Care, L.L.C., Marsha
McLane, Michael Searcy, and others, in which he alleged constitutional
violations and other wrongs inflicted on him while he was in the custody of the
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                                       No. 17-11522

Texas Civil Commitment Office. After removing the case to federal court,
defendants McLane and Searcy filed a partial motion to dismiss. McLane also
filed an answer. Welsh then filed an amended complaint, which no defendant
answered.
       Months later, Welsh moved to dismiss his action without prejudice.
After a clerical error, the court entered a nunc pro tunc 1 order dismissing the
case “with prejudice” on the ground that at least one defendant—McLane—
had answered. Welsh appeals, arguing that he was entitled to voluntary
dismissal without prejudice and without a court order.
                                             II.
       A plaintiff may unilaterally dismiss his action without prejudice by filing
a “notice of dismissal before the opposing party serves either an answer or a
motion for summary judgment.” FED. R. CIV. P. 41(a)(1)(A)(i). If the defendant
has filed an answer or a motion for summary judgment, however, Rule 41(a)(2)
permits dismissal at the plaintiff’s request “only by court order, on terms that
the court considers proper.” Id. 41(a)(2). Unless otherwise stated in the order,
a dismissal under either subsection is without prejudice.                  Id. 41(a)(1)(B),
41(a)(2). We review the district court’s decision for abuse of discretion. See
Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 318 (5th Cir. 2002).
                                             A.
       Federal Rule of Civil Procedure 41(a)(1)(A)(i) grants Welsh an absolute
right to dismiss his lawsuit before the defendant has filed an answer or a
summary judgment motion. Defendant McLane filed an answer to Welsh’s
earlier complaint, 2 but he did not answer Welsh’s later-filed amended

       1  “Nunc pro tunc” translates literally to “now for then” and “denotes an order having
retroactive legal effect through a court’s inherent power.” 60 C.J.S. Motions and Orders § 52,
at 61 (2012).
        2 Welsh filed an original petition and an amended petition in state court. McLane

answered the amended petition, which will be referred to as the “earlier complaint.”


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complaint. We must, therefore, determine whether filing an answer to the
earlier complaint, but not to the amended complaint, is sufficient to preclude
the plaintiff from voluntarily dismissing his claim as a matter of right under
Rule 41(a)(1)(A)(i).
      The Fourth Circuit addressed this issue in Armstrong v. Frostie Co. and
determined that a plaintiff was barred from unilaterally dismissing his
complaint under Rule 41(a)(1)(A)(i) where a defendant filed an answer to the
plaintiff’s original complaint but not to his amended complaint. 453 F.2d 914,
916 (4th Cir. 1971). The court reasoned that Rule 41(a)(1)(A)(i) “is designed to
permit a disengagement of the parties at the behest of the plaintiff only in the
early stages of a suit, before the defendant has expended time and effort in the
preparation of his case” and the filing of an amended complaint “increased
rather than nullified [the defendant’s] burden.” Id. Others have agreed. See
Universidad Cent. Del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d
14, 18 (1st Cir. 1985) (noting that Armstrong stands for the proposition that “a
plaintiff cannot supersede the cutting off of its right to give notice of voluntary
dismissal by filing an amended complaint after an answer or motion for
summary judgment has been filed by the defendant”); Baiul v. NBC Sports,
708 F. App’x 710, 713 (2d Cir. 2017) (“[N]o new right of dismissal is created by
the filing of an amended complaint, even one with substantially new
allegations.”); see also 9 WRIGHT & MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2363, at 122 (3d ed. Supp. 2018) (“Multiple courts have held that
an answer to the plaintiff’s original complaint is sufficient to preclude
dismissal by notice even though the defendant has not submitted an answer to
the plaintiff’s amended complaint.”); cf. Van-S-Aviation Corp. v. Piper Aircraft
Corp., 551 F.2d 213, 220 (8th Cir. 1977) (“The purpose of Rule 41(a)(1)[(A)](i)
is to fix the point at which the resources of the court and the defendant are so



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committed that dismissal without preclusive consequences can no longer be
had as of right.”).
      We agree with the Fourth Circuit’s reasoning and hold that the filing of
an amended complaint does not revive the plaintiff’s absolute right to dismissal
under Rule 41(a)(1)(A)(i). See Armstrong, 453 F.2d at 916. Because McLane
filed an answer to Welsh’s earlier complaint, Welsh cannot utilize Rule
41(a)(1)(A)(i)’s voluntary dismissal without a court order as to that defendant.
However, the Rules permit voluntary dismissal by notice and without a court
order of any defendant who has not served an answer, which in this case is all
defendants except McLane. See FED. R. CIV. P. 41(a)(1)(a)(i); Plains Growers
By & Through Florists’ Mut. Ins. Co. v. Ickes-Braun Glasshouses, Inc., 474 F.2d
250, 255 (5th Cir. 1973). Therefore, Welsh is entitled to dismissal by notice
under Rule 41(a)(1)(A)(i) without prejudice and without a court order against
all defendants other than McLane.
                                      B.
      Because McLane filed an answer, the district court’s dismissal of Welsh’s
claim against him falls under Rule 41(a)(2), which allows the court to impose
conditions on the dismissal. The district court dismissed Welsh’s claim with
prejudice.   A plaintiff typically “has the option to refuse a Rule 41(a)(2)
voluntary dismissal and to proceed with its case if the conditions imposed by
the court are too onerous.” Mortgage Guar. Ins. Corp. v. Richard Carlyon Co.,
904 F.2d 298, 301 (5th Cir. 1990). Thus, “before requiring a Rule 41(a)(2)
dismissal to be with prejudice, a court must allow a plaintiff the opportunity
to retract his motion to dismiss” rather than accept the dismissal with
prejudice. Bell v. Keystone RV Co., 628 F.3d 157, 163 n.4 (5th Cir. 2010).
Where, as here, the plaintiff was not given the chance to withdraw the motion
and reject the condition of dismissal with prejudice, a remand is in order. See



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Mortgage Guar., 904 F.2d at 301 (citing Lau v. Glendora Unified School
District, 792 F.2d 929, 931 (9th Cir. 1986)). Therefore, we find that the district
court abused its discretion when it dismissed Welsh’s case with prejudice
without giving him the chance to reject or accept the dismissal. See id.
                                       ***
      To summarize, as to all non-answering defendants, Welsh is entitled to
unconditional dismissal by notice under Rule 41(a)(1)(A)(i) without prejudice
and without a court order. See FED. R. CIV. P. 41(a)(1)(A)(i); Plains Growers,
474 F.2d at 255. As to defendant McLane, Welsh is entitled to dismissal by
motion under Rule 41(a)(2) “on terms that the court considers proper” with the
opportunity to retract his motion to dismiss if he finds the court’s conditions
too onerous. See FED. R. CIV. P. 41(a)(2); Mortgage Guar., 904 F.2d at 301.
Accordingly, we VACATE the district court’s order and REMAND for further
proceedings consistent with this opinion.




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