A Federal Plaintiff's Right to "Fish or Cut Bait"

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By filing a complaint in federal court, a plaintiff may unilaterally initiate a civil action against a defendant. As "master of [its] complaint," the plaintiff also decides which laws provide the framework for it to recover under the facts the plaintiff alleges. Caterpillar Inc. v. Williams. Does that mean that a plaintiff has the accompanying, unilateral and discretionary right to dismiss its case, too?

As with many legal questions, the answer is "yes and no." Federal Rule of Civil Procedure 41(a)(1) gives a plaintiff the right to dismiss its complaint until the defendant has filed either an answer or a motion for summary judgment in response. Through both filings, the defendant admits or denies - and therefore engages substantively with - the facts alleged in the plaintiff's complaint. By rule, such engagement means that the plaintiff can only dismiss the case with the defendant's consent. Filing a motion to dismiss - through which a defendant argues, for example, that even if all of the facts alleged in the complaint are true, a plaintiff's claim may not proceed as a matter of law - does not bind the plaintiff to its case in the same way. The plaintiff may file a notice of voluntary dismissal, effective on filing, to end the action, without regard either to the plaintiff's motivation or the defendant's position on the matter.

In Cedar Bay Grilling Co. Ltd. v. Canadian Fish Exporters Inc., a defendant seafood distributor challenged a plaintiff seafood supplier's Rule 41(a)(1) dismissal of an action, which the plaintiff filed following the defendant's motion to enforce a settlement agreement between the parties in that matter. Although the court "empathized with defendant's frustration" over the plaintiff's alleged attempt to avoid litigating either the terms of a purported settlement agreement or the underlying matter itself, the court "lack[ed] the authority to disturb plaintiff's notice of dismissal pursuant to Fed. R. Civ. P. 41(a)(1)" because the defendant had filed neither an answer nor a motion for summary judgment. The mere fact that courts generally apply a summary judgment standard to motions to enforce settlement agreements made no difference because the defendant had filed neither of the actual pleadings specified under Rule 41(a)(1). Therefore, the plaintiff retained the "absolute right" to dismiss its action voluntarily and without the defendant's assent. The court considered the case terminated and denied the defendant's motion accordingly.

Depending on the circumstances, a defendant might prefer to keep a case alive for strategic reasons, including the potential to bring counterclaims against the plaintiff. Parties engaged in preliminary - and sometimes lengthy - settlement talks concerning federal litigation should remember the plaintiff's Rule 41(a)(1) right to "fish or cut bait" and take care to preserve their interests.

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