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Lowe v. Fountain Forestry

January 30, 2008

GAYDON LOWE AND WIFE MELISSA LOWE, PLAINTIFFS,
v.
FOUNTAIN FORESTRY, INC., DEFENDANTS.



The opinion of the court was delivered by: Thomas W. Phillips United States District Judge

(Phillips)

MEMORANDUM OPINION

On January 14, 2008, plaintiffs filed a notice of voluntary dismissal without prejudice [Doc. 6]. Defendant now moves to strike plaintiff's notice of voluntary dismissal [Doc. 4] because it had filed its answer and cross-complaint and because plaintiff did not comply with the Local Rules of this court requiring electronic filing.

For the reasons that follow, defendant's motion is DENIED, plaintiffs' claims are DISMISSED without prejudice, and defendant's counterclaim is REMANDED to the Chancery Court for Scott County, Tennessee.

I. BACKGROUND

On December 18, 2007, plaintiffs brought the instant action in the Chancery Court for Scott County, Tennessee. On January 10, 2008, defendant removed the action to this court, citing diversity of citizenship as the basis for this court's jurisdiction. On January 14, 2008, the plaintiffs filed a notice of voluntary dismissal. Instead of utilizing this court's electronic filing system, plaintiffs filed a copy with the office of the Clerk of Court and both mailed and hand-delivered copies to defendant. That same day, defendant electronically filed its answer and counter-complaint. Plaintiffs apparently filed their notice of voluntary dismissal a short time before defendant filed its answer and counter-complaint.

Defendant moves the court to strike plaintiffs' voluntary dismissal. In support, defendant argues that plaintiffs' notice should not be given priority, as it was filed in violation of this court's local rules requiring electronic filing. Defendant also disputes the validity of the service of the notice. Assuming priority, defendant argues that voluntary dismissal is precluded under Federal Rule of Civil Procedure 42(a)(1), as the notice was served afterthe answer was filed.Finally, defendant argues that this is merely a vehicle for plaintiffs to refile this action in state court, pleading a lesser amount of damages such that federal jurisdiction based on diversity of citizenship would not exist.

Plaintiffs do not dispute that they did not file electronically, but note to the court that they had not expected to practice in federal court and have not done so for several years. Plaintiffs also cite Federal Rule of Civil Procedure 5(d)(4), which states that "[t]he clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice." Finally, plaintiffs note that if they had waited for their registration on the electronic filing system to become complete, they would have been prejudiced by the loss of their right to dismiss the action voluntarily without an order of the court.

II. ANALYSIS

Federal Rule of Civil Procedure 41 governs the dismissal of an action. Rule 41(a)(1) provides for voluntary dismissal by the plaintiff. A plaintiff is permitted to "dismiss an action without a 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. Pro. 41(a)(1). Defendant argues that because it had filed its answer on the same day as plaintiff filed this notice and because it filed in accordance with this court's electronic filing system, this court should find that defendant had filed its answer and therefore voluntary dismissal without court order is improper.

However, as plaintiff notes, Rule 5(d)(4) provides that the Clerk may not refuse to accept any filing simply because it does not comply with the Federal Rules of Civil Procedure or local rules of this court. More so, Rule 5(d)(3) states that if a court requires electronic case filing, it may only do so if "reasonable exceptions are allowed." This court accepts plaintiff's reasons for filing with the Clerk, rather than electronically, and needs not disallow the filing solely because of its form or the manner in which it was filed. Accordingly, plaintiffs served the notice before defendant filed its answer and counter-complaint, and the voluntary dismissal without prejudice is valid.

In any event, even if this court were to find that plaintiffs' violation of the electronic filing system requirements gave priority to defendant's answer, dismissal is proper by court order under Rule 41(a)(2). That rule provides:

Except as provided in Rule 41(a)(1), an action may be dismissed by the plaintiff's request only by court order, on terms that the court considers proper.

If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim ...


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