Exxon Corp. v. Maryland Cas. Co., No. 79-1357

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before COLEMAN, FAY and RUBIN; ALVIN B. RUBIN
• Citation: 599 F.2d 659
• Parties: EXXON CORPORATION, Plaintiff-Appellant, v. MARYLAND CASUALTY COMPANY, Defendant-Appellee. Summary Calendar. *
• Docket Number: No. 79-1357
• Decision Date: 26 July 1979

Page 659

599 F.2d 659 54 A.L.R.Fed. 207 EXXON CORPORATION, Plaintiff-Appellant,
v.
MARYLAND CASUALTY COMPANY, Defendant-Appellee. No. 79-1357
Summary Calendar. ^* United States Court of Appeals,
Fifth Circuit. July 26, 1979.

Page 660

Francis J. Mooney, Jr., Charles J. Escher, New Orleans, La., for plaintiff-appellant.

Deutsch, Kerrigan & Stiles, Marian Mayer Berkett, Charles F. Seemann, Jr., New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before COLEMAN, FAY and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Maryland Casualty Company has filed a motion to dismiss this appeal of Exxon Corporation as premature. In order to explain the unusual context in which we find this motion and our action in granting it, we briefly review the events below.

As a result of the failure of one of its customers, Lambert, ¹ to pay its bills, Exxon filed a diversity suit against the customer's surety, Maryland Casualty, alleging that Maryland Casualty was responsible for the unpaid bills. The suit was based on two separate but overlapping claims. The first claim ² was based on the quasi-contract theory that Maryland Casualty was a Negotiorum gestor. ³ The second claim ⁴ rested on Maryland Casualty's obligation under the terms of performance bonds executed on behalf of Lambert to pay for materials furnished to Lambert but not paid for. ⁵ Maryland Casualty responded to the complaint by filing a motion to dismiss the two claims under Rule 12, Fed.R.Civ.P. ⁶ The motion to dismiss the second claim was withdrawn before the court ruled on it. After receiving briefs concerning the theory of the first claim, the trial court dismissed it in June, 1977. ⁷

Exxon responded to the dismissal of its claim by requesting a Rule 54(b) ⁸ certificate.

Page 661

The court denied the request in July, 1977. Shortly after a motion to reconsider the dismissal or the refusal to grant a Rule 54(b) certificate was denied in January, 1979, Exxon filed a notice of dismissal of its second claim under Rule 41(a)(1)(i). ⁹ On the same day, another motion for a Rule 54(b) certificate and a notice of appeal from the January, 1979 denial of the motion to reconsider were also filed.

In response to Exxon's brief filed in this court, Maryland Casualty filed a motion to dismiss the appeal as premature. It contends that Rule 41 does not permit the withdrawal of a claim after a motion for summary judgment has been filed, that the putative motion to dismiss was in effect a motion for summary judgment, and that Exxon may not dismiss merely a claim under Rule 41(a)(1)(i), but may invoke the rule only to dismiss the entire action. Exxon contends that it acted in time because Maryland Casualty had not filed an answer or motion for summary judgment on the second claim, and that it was proper to use the rule to dismiss the only claim not adjudicated by the district court.

Rule 41(a)(1) grants a plaintiff the right to dismiss "an action" at an early stage of the proceedings voluntarily, without prejudice, and without consent of the court. See 9 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2363 at 151-52 (1971). One method, not involved here, is by filing a stipulation of all the parties (Rule 41(a)(1)(ii)). Exxon attempted to use the other method, filing a unilateral notice of dismissal (Rule 41(a)(1)(i)).

A unilateral motion to dismiss an action is permissible only before the defendant has filed an answer or a motion for summary judgment. The theory underlying this limitation is that, after the defendant has become actively engaged in the defense of a suit, he is entitled to have the case adjudicated and it cannot, therefore, be terminated without either his consent, permission of the court, or a dismissal with prejudice that assures him against the renewal of hostilities.

However, the right is not cut off by a motion to dismiss. Carter v. United States, 5 Cir. 1977, 547 F.2d 258, 259. Maryland Casualty contends that, in this case, things are not as they seem or are named: the trial court's receipt of matters outside the pleadings in considering the motion to dismiss converted it into a motion for summary judgment, terminating Exxon's right to take unilateral action. Exxon counters that Maryland Casualty never filed a motion for summary judgment, but that, even if the motion to dismiss was properly converted into one by action of the trial judge, the motion for summary judgment applied only to the first claim, and thus did not terminate the use of the rule to dismiss the second claim.

The motion to dismiss under Rule 12(b)(6) was indeed converted into a motion for summary judgment because the trial court was presented with, and did not exclude, matters outside the pleadings. Fed.R.Civ.P. 12(b). For the purposes of Rule 41(a)(1), a converted 12(b)(6) motion to dismiss will be treated as a motion for summary judgment. See Nix v. Fulton Lodge No. 2, 5 Cir. 1971, 452 F.2d 794, 797-98, Cert. denied, 1972,...