                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


                                              )
DETROIT INTERNATIONAL                         )
BRIDGE COMPANY, et al.,                       )
                                              )
               Plaintiffs,                    )
                                              )
       v.                                     )       Civil Action No. 10-476 (RMC)
                                              )
GOVERNMENT OF CANADA, et al.,                 )
                                              )
               Defendants.                    )
                                              )


                                  MEMORANDUM OPINION

               Plaintiffs Detroit International Bridge Company and the Canadian Transit Company

have filed a notice of voluntary dismissal dismissing all claims against the Government of Canada,

the Federal Highway Administration, Victor Mendez, and Ray Lahood. See Notice of Dismissal

[Dkt. # 52]. The Government of Canada objects to the notice and has filed a motion to vacate

plaintiff’s notice of dismissal. See Canada’s Mot. to Vacate Plaintiffs’ Notice of Dismissal (“Mot.

to Vacate”) [Dkt. # 54]. For the reasons stated herein and those at the hearing on November 30,

2011, the Court will deny Canada’s motion.

                                          I. ANALYSIS

               Rule 41(a)(1)(A) allows a plaintiff to “dismiss an action without court order 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). Unless the notice “states otherwise, the dismissal is without

prejudice.” Fed. R. Civ. P. 41(a)(1)(B). However, “if the plaintiff previously dismissed any federal-

or-state-court action based on or including the same claim, a notice of dismissal operates as an
adjudication on the merits.” Id. Plaintiffs filed their Rule 41(a)(1)(A) notice on November 29, 2011.

[Dkt. # 52]. Although Canada has filed a motion to dismiss, it has not answered or moved for

summary judgment.

                Canada concedes that a “wooden reading of the rule” would require dismissal. Mot.

to Vacate at 2. Canada, however, has been involved in this litigation for more than 20 months and

argues that plaintiff’s notice – filed the day before oral argument was to be held on Canada’s motion

to dismiss – should be vacated. See id. pp 2-3. Canada contends that it has “joined issue” with the

plaintiffs and that the purposes of Rule 41 would not be served by allowing plaintiffs to dismiss this

action voluntarily without prejudice, especially given Canada’s status as a foreign sovereign. See

id. Canada relies on Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105, 108 (2d Cir.

1953) to support its argument that the issues have been joined and voluntary dismissal is improper.

See id. p. 2.

                Harvey Aluminum, however, is both factually distinct and has been rejected by every

circuit court that has analyzed it. First, in Harvey Aluminum, plaintiff voluntarily dismissed its suit

after the district court had held an evidentiary hearing and denied plaintiff’s motion for a preliminary

injunction. 203 F.2d at 106. The district court determined that plaintiff’s chance of success on the

merits was “remote, if not completely nil.” Id. Afterward, plaintiff filed a notice dismissing the

action without prejudice. Id. The district court “denied” the notice and the Second Circuit affirmed,

holding:

        The hearing before Judge Sugarman on the plaintiff's motion for a preliminary
        injunction required several days of argument and testimony, yielding a record of
        some 420 pages. Further, the merits of the controversy were squarely raised and the
        district court in part based its denial of the injunction on its conclusion that the
        plaintiffs' chance of success on the merits was small. Consequently, although the


                                                       2
       voluntary dismissal was attempted before any paper labeled ‘answer’ or ‘motion for
       summary judgment’ was filed, a literal application of Rule 41(a) 1 to the present
       controversy would not be in accord with its essential purpose of preventing arbitrary
       dismissals after an advanced stage of a suit has been reached.

Id. at 107-08 (citations omitted). The Second Circuit further held that Rule 41 did not permit

dismissal against some, but not all of the defendants. Id. at 108.

               Unlike Harvey Aluminum, Canada has not been engaged “in several days of argument

and testimony.” Although it has have been involved in the suit for some time, much of that time

dealt with the United States’ effort to change venue – an argument in which Canada did not assert

a position one way or another. See Memo Op. [Dkt. #43]. Thus, it is not clear that the issues in this

case have already been “joined” like those in Harvey Aluminum.

               Second, Harvey Aluminum has been rejected by every circuit that has considered it.

See American Soccer Co., Inc. v. Score First Enterprises, 187 F.3d 1108 (9th Cir. 1999); Marex

Titanic, Inc. v. Wrecked and Abandoned Vessel, 2 F.3d 544 (4th Cir. 1993); Plains Growers, Inc. v.

Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 254-55 (5th Cir. 1973). See also Marques v.

Federal Reserve Bank of Chicago, 286 F.3d 1014, 1016-18 (7th Cir. 2002); Estalco Aluminum Co.

v. United States, 995 F.2d 201, 204 (Fed. Cir. 1993); Matthews v. Gaither, 902 F.2d 877, 880 (11th

Cir. 1990). In fact, even the Second Circuit, while not overruling the decision, has called Harvey

Aluminum into doubt. See Wakefield v. Northern Telecom, Inc., 769 F. 109, 114 (2nd Cir. 1985).

Thus, the “sounder view and the weight of judicial authority” is to allow a plaintiff to dismiss its

claims against all defendants or any defendant at any time before that defendant has filed an answer

or motion for summary judgment. 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure, § 2362 (3d ed. 2011).



                                                 3
                                      II. CONCLUSION

              There is nothing in the record or the parties’ arguments to cause the Court to ignore

the language of Rule 41 or the unmistakable weight of judicial authority. Because Canada has not

filed an answer or a motion for summary judgment, plaintiffs are entitled to dismiss their claims

against Canada.

              A memorializing Order accompanies this Memorandum Opinion.



Date: December 1, 2011                                      /s/
                                                ROSEMARY M. COLLYER
                                                United States District Judge




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