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

                                                 FILED
                                                                            June 22, 2009

                                       No. 08-60728                    Charles R. Fulbruge III
                                                                               Clerk

KAY CRANFORD

                                                   Plaintiff - Appellant
v.

MORGAN SOUTHERN INC,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                  for the Southern District of Mississippi, Jackson
                                    3:07-CV-205


Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
       In October 2006, Dwight Cranford was killed shortly after a car collision
caused by truck driver Christopher North. North was an employee of Morgan
Southern, Inc., and was acting within the scope of his employment at the time.
Plaintiff-appellant Kay Cranford, Dwight Cranford’s widow, sued North and
Morgan Southern, Inc., in the United States District Court for the Southern
District of Mississippi, alleging wrongful death under Mississippi law. On the
day trial was to begin, Cranford orally moved to voluntarily dismiss North

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 08-60728

pursuant to Federal Rule of Civil Procedure 41(a)(2). Morgan Southern, Inc.,
then orally requested that it also be dismissed pursuant to J&J Timber Co. v.
Broome, 932 So. 2d 1 (Miss. 2006). During the hearing, Cranford moved to
withdraw her motion for voluntary dismissal of North but the court never ruled
on the request. The district court ultimately granted Morgan Southern’s motion
and dismissed both defendants. Cranford timely appealed. For the following
reasons, we hold that the district court abused its discretion when it failed to
grant Cranford’s request to withdraw her Rule 41(a)(2) motion and therefore
remand for further proceedings consistent with this opinion.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      On or about October 19, 2006, Christopher North, a non-resident citizen
of Mississippi living in Tennessee, was driving a tractor-trailer truck owned by
defendant-appellee Morgan Southern, Inc. (“Morgan Southern”), a Georgia
corporation. While making a turn on the highway, North caused a collision
which ultimately killed Dwight Cranford, husband of plaintiff-appellant Kay
Cranford, a resident citizen of Mississippi. Cranford sued Morgan Southern and
North for the wrongful death of her husband in the United States District Court
for the Southern District of Mississippi. She alleged, and defendants conceded,
that North was the agent, employee and/or servant of Morgan Southern; was
acting in the furtherance of Morgan Southern’s business; and was acting within
the scope of his employment on October 19, 2006.
      On the day that trial was to begin, Cranford made an oral motion
requesting to “dismiss the suit against Christopher North as a party defendant”
because she no longer “wish[ed] to pursue a claim individually” against North.
Cranford stated that she would instead “serve him with a subpoena” so that he
could “testify as a witness.” When asked for a response, Morgan Southern stated
that it “would accept that voluntary dismissal of defendant North.” Before the
court granted Cranford’s motion, Morgan Southern immediately requested that

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it also be dismissed in light of J & J Timber Co. v. Broome, 932 So. 2d 1 (Miss.
2006), which it told the court stood for the proposition that “where the injured
party dismisses the employee and the suit against the employer is based solely
upon respondeat superior, the vicarious liability claim itself is extinguished if
the solely negligent employee has been released from liability of negligence.” In
response, Cranford generally argued that it was “basic black letter law” that “[i]t
is not necessary . . . for the employee or the agent of the corporation to be a party
defendant to bind the corporation for that employee’s acts.” However, neither
the court nor Cranford was familiar with J & J Timber, and thus the court took
a recess so that both could review it.
      After recess, Cranford attempted to distinguish J & J Timber, then stated:
“If the court is interpreting this case and the[] cases . . . cited in this case as
saying that we can’t nonsuit the defendant-employee without extinguishing our
claim against the company, then, certainly, Judge, we withdraw our motion to
do that, our nonsuit of this defendant.” It also stated: “[I]f in order for us to keep
the servant in as an individual defendant rather than as an agent, rather than
as an employee, and not individually, then we choose to withdraw our motion to
dismiss him individually.” Though it orally repeated this request a third time,
the court never formally acknowledged it or ruled on it.             In response to
Cranford’s third request to withdraw, Morgan Southern stated: “Plaintiff can’t
come back and withdraw a motion that plaintiff made and the court has already
granted in the record. That motion has been granted. He can’t undo. He can’t
put the genie back in the bottle.”
      The district court ultimately ruled, inter alia, that North had been
properly dismissed because “the plaintiff . . . voluntarily dismissed the
driver-employee from this litigation and subpoenaed the driver-employee to
appear as a witness in this action”; the court had “asked [the] defense whether
there was any objection to dismissal”; and “the defense had none.” Additionally,

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pursuant to J & J Timber, the court ruled that it had “no option but to grant the
motion of [Morgan Southern] to dismiss this case in its entirety.” Cranford
timely appealed.
                            II. STANDARD OF REVIEW
       “The decision to dismiss an action [pursuant to Federal Rule of Civil
Procedure 41(a)(2)] rests within the sound discretion of the trial court and may
only be reversed for an abuse of that discretion.” Schwarz v. Folloder, 767 F.2d
125, 129 (5th Cir. 1985) (citing, e.g., La-Tex Supply Co. v. Fruehauf Trailer
Division, 444 F.2d 1366, 1368 (5th Cir. 1971)).
                                    III. DISCUSSION
       As a preliminary matter, we note that Cranford did not state whether her
motion to dismiss was with or without prejudice. Hence, we discuss both kinds
of dismissals.
       Federal Rule of Civil Procedure 41(a) “permit[s] the plaintiff voluntarily
to dismiss the action when no other party will be prejudiced.”1 9 C HARLES A LAN
W RIGHT & A RTHUR R. M ILLER, F EDERAL P RACTICE AND P ROCEDURE § 2362 (3d ed.
2008). Specifically, Rule 41(a)(2) states:
       Except as provided in Rule 41(a)(1) [which allows a plaintiff to
       voluntarily dismiss an action without a court order], an action may
       be dismissed at the plaintiff’s request only by court order, on terms
       that the court considers proper. . . . Unless the order states
       otherwise, a dismissal under this paragraph (2) is without prejudice.




       1
        Preliminarily, we note that we have jurisdiction over this appeal because Cranford’s
Rule 41(a)(2) dismissal resulted in a final dismissal of the suit with prejudice. LeCompte v.
Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976) (noting that a dismissal with prejudice
“actually goes to the merits of the case and is considered a final appealable order”); Conley v.
Aetna Life Ins. Co., No. 99-10149, 2000 WL 554056, at *2 (5th Cir. April 11, 2000) (“[W]e are
unpersuaded that there is a distinction between explicitly electing to dismiss with prejudice
and electing to act such that the district court will inevitably dismiss with prejudice.
Consequently, we find that this court has jurisdiction to hear the instant appeal . . . .”).

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A district court generally imposes terms and conditions when granting a motion
for a voluntary dismissal under Rule 41(a)(2) in order to protect the defendant.
9 W RIGHT & M ILLER, supra, at § 2366. A “plaintiff 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).          However, an “important
qualification” to this rule is that “the plaintiff’s option to withdraw the motion
to dismiss must be exercised in a timely fashion.” Id. A plaintiff must have “‘a
reasonable period of time within which to refuse the conditional voluntary
dismissal by withdrawing her motion for dismissal or to accept the dismissal
despite the imposition of conditions.’” Id. (quoting Lau v. Glendora Unified Sch.
Dist., 792 F.2d 929, 931 (9th Cir. 1986)). In Mortgage Guaranty Insurance
Corporation, this court recognized that “[w]hat constitutes a reasonable period
of time for a plaintiff to exercise its option to withdraw a motion to dismiss is not
well developed in the case law.” Id. In that case, it ruled that a plaintiff’s
motion to withdraw was untimely when it was filed thirty-eight days after the
court indicated its intent to impose conditions. Id. at 301–302 The Mortgage
Guaranty court also cited Lau v. Glendora Unified School District, in which the
Ninth Circuit “remanded to give the plaintiff the opportunity to accept or reject
a dismissal with conditions attached.” Id. at 301. In that case, the district court
had responded to the plaintiff’s Rule 41(a)(2) motion by simply “ordering the
plaintiff to pay defendant’s attorneys’ fees” and had thereby given the plaintiff
“no options whatsoever” regarding such conditions. Id.
      This court has warned that, where a district court “converts” a Rule
41(a)(2) motion for dismissal without prejudice into a motion to dismiss with
prejudice, it must “be careful to craft conditions that are not overbroad.” Elbaor
v. Tripath Imaging, Inc., 279 F.3d 314, 320 (5th Cir. 2002) (citations omitted).
In such circumstances, a plaintiff must still be given the opportunity to

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withdraw its motion to dismiss. Id. (citing Mortgage Guar. Ins. Corp., 904 F.2d
at 301). Other circuits have similarly stated that a court “upsets notions of
fundamental fairness” when, “in response to a party’s request for dismissal
without prejudice,” it “grant[s] the request by dismissing with prejudice” but
“fail[s] to give the moving party notice of its inclination to impose this extreme
remedy.” Andes v. Versant Corp., 788 F.2d 1033, 1037 (4th Cir. 1986); accord
Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995); De Fontanez v. Jefferson
Pilot Life Ins. Co., No. 93-2268, 1994 WL 424096, at *1 (1st Cir. Aug. 15, 1994));
Marlow v. Winston & Strawn, 19 F.3d 300, 305 (7th Cir. 1994); Gravatt v.
Columbia Univ., 845 F.2d 54, 55–56 (2d Cir. 1988).2
       In the present case, the district court abused its discretion because it failed
to rule on Cranford’s timely motion to withdraw her motion to voluntarily
dismiss North. Cranford’s Rule 41(a)(2) motion to dismiss North was made on
the first day of trial, just before the jury was to enter the courtroom for jury
selection, and she clearly did so without being aware of its possible consequence.
After realizing the possible effect of her motion to dismiss North, she
unequivocally stated: “we withdraw our motion to do that, our nonsuit of this
defendant,” and repeated this again twice in the hearing. Cranford’s motion to


       2
         Morgan Southern asserts that this line of cases does not apply because Cranford never
explicitly requested that dismissal be without prejudice. It points to Babcock v. McDaniel, a
Seventh Circuit case in which a prisoner sued prison officials and then subsequently sent a
letter to the district court asking for dismissal of his case. 148 F.3d 797, 798 (7th Cir. 1998).
The court recognized the general rule, stated in cases such as Marlow, that “[w]hen a plaintiff
moves for dismissal without prejudice, the district court may not dismiss the action with
prejudice without first providing the plaintiff a reasonable opportunity to withdraw the
motion.” Id. at 799. However, the court reasoned that “[u]nlike the motion in Marlow, . . .
which explicitly requested a dismissal without prejudice, Babcock’s letter did not speak to the
issue of prejudice at all” and therefore the district court did not abuse its discretion when it
interpreted the letter as a request for dismissal with prejudice. Id. In the present case, we
recognize that Cranford did not specify whether she was dismissing North with or without
prejudice, and the district court may well have interpreted her motion as a request for a
dismissal with prejudice. Either way, under the circumstances that obtained, as discussed
below, she was entitled to a ruling on her request to withdraw her motion.

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withdraw was therefore clearly timely, occurring in the very same hearing and
on the very same day that she initially moved to dismiss North. If the court had
granted the motion, jury selection could have begun and the trial could have
gone on as scheduled. Thus, the court erred in failing to rule on Cranford’s
request to withdraw her motion. The same considerations bear on the question
whether Cranford’s request should have been granted. The draconian potential
consequence to Cranford’s case of denying the request, specifically, dismissal of
the case, weighed against the consequence to Morgan Southern of granting the
request, specifically, getting on with the scheduled trial, weighs in favor of
granting the request. The district court erred in failing to grant Cranford’s
request.
      Our conclusion that the court erred in failing to grant Cranford’s motion
makes it unnecessary for us to decide whether the district court correctly
dismissed the case based on its understanding of J & J Timber Co.
                              IV. CONCLUSION
      For the foregoing reasons, we REVERSE the order of the district court
dismissing the case and REMAND with instructions to grant Cranford’s
request to withdraw her motion and for further proceedings consistent with
this opinion. Costs shall be borne by Morgan Southern.




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