Carter v. U.S., No. 76-1601
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | Before GOLDBERG, CLARK and FAY; GOLDBERG |
| Citation | 547 F.2d 258 |
| Parties | Albert H. CARTER, Petitioner-Appellant, v. UNITED STATES of America et al., Respondents-Appellees. Summary Calendar. * |
| Docket Number | No. 76-1601 |
| Decision Date | 16 February 1977 |
Page 258
v.
UNITED STATES of America et al., Respondents-Appellees.
Summary Calendar. *
Fifth Circuit.
Albert H. Carter, pro se.
Arnold A. Vickery (Court-appointed), Houston, Tex., for petitioner-appellant.
Ronald T. Knight, U. S. Atty., Edgar Ennis, Jr., Asst. U. S. Atty., Macon, Ga., for respondents-appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before GOLDBERG, CLARK and FAY, Circuit Judges.
GOLDBERG, Circuit Judge:
Plaintiff filed this suit against the United States and various government officials, seeking to expunge all records of his earlier perjury conviction. Defendants filed a motion to dismiss the complaint and a supporting memorandum. Before the court ruled on the motion, plaintiff filed his own motion to dismiss. The motions differed in that plaintiff sought dismissal without prejudice, whereas defendants sought an adjudication on the merits. The court granted defendants' motion, writing an opinion in support of its view that plaintiff's lawsuit was meritless.
We have no occasion to review the district court's resolution of the merits. We hold that the court erred when it refused to dismiss the complaint without prejudice as the plaintiff desired. The issue is squarely governed by Fed.R.Civ.P. 41(a)(1):
(A)n action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment,
Page 259
whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. 1As the plain terms of Rule 41(a)(1)(i) establish, a plaintiff has an absolute right to dismiss a lawsuit before the defendant has filed an answer or summary judgment motion. The defendants here concededly filed neither, and the district court therefore should have dismissed the complaint without prejudice.
The defendants complain that they expended considerable effort in preparing their motion to dismiss, and...
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Carter v. Telectron, Inc., Civ. A. No. 71-H-944.
...motion to dismiss with prejudice granted; 2-16-77: Remanded to enter dismissal without prejudice pursuant to pltf.'s notice of dismissal, 547 F.2d 258 (5th Cir. 1977) 452 F. Supp. 979 ALBERT H. CARTER V. UNITED STATES & ITS OFFICERS & OFFICIALS ==============================================......
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Hines v. Graham, Civil Action No. 1:03-CV-152-C.
...motion[,]" it appears that this Court must grant Plaintiff's motion to voluntarily dismiss his complaint. Carter v. United States, 547 F.2d 258, 259 (5th Cir.1977). The Fifth Circuit Court of Appeals has previously stated that a district court does not have the discretion to take any action......
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ISC Holding AG v. Nobel Biocare Fin. AG, 10-4867-cv(L)
...F.3d 161, 165 (3d Cir. 2008); Am. Soccer Co., Inc. v. Score First Enters., 187 F.3d 1108, 1110 (9th Cir. 1999); Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977). 40. Moore's cites to the False Claims Act, 31 U.S.C. § 3730(b)(1), the Immigration and Nationality Act, 8 U.S.C. § 1329......
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ISC Holding AG v. Nobel Biocare Fin. AG, s. 10–4867–cv(L), 11–239–cv(CON).
...535 F.3d 161, 165 (3d Cir.2008); Am. Soccer Co., Inc. v. Score First Enters., 187 F.3d 1108, 1110 (9th Cir.1999); Carter v. United States, 547 F.2d 258, 259 (5th Cir.1977). 4.Moore's cites to the False Claims Act, 31 U.S.C. § 3730(b)(1), the Immigration and Nationality Act, 8 U.S.C. § 1329,......