Swedberg v. Marotzke, 02-15517.

Citation339 F.3d 1139
Decision Date14 August 2003
Docket NumberNo. 02-15517.,02-15517.
PartiesKazue SWEDBERG, Plaintiff-Appellee, v. Emil MAROTZKE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

John R. Clemency, Esquire, Phoenix, AZ, for the defendant-appellant.

David S. Maring, Esquire, Bismark, ND, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Morton Sitver, Magistrate Judge, Presiding. D.C. No. CV-99-01977-MS.

Before HUG, GIBSON,* and FISHER, Circuit Judges.

OPINION

JOHN R. GIBSON, Senior Circuit Judge.

Emil Marotzke appeals from an order reinstating Kazue Swedberg's dismissal of her complaint without prejudice. Marotzke contends his motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) was converted to a summary judgment motion because Swedberg filed extraneous materials with her opposition. Because Rule 41(a)(1) only permits dismissal without prejudice before a defendant has filed a summary judgment motion, Marotzke contends that Swedberg's notice of dismissal was not effective. The district court's1 ultimate conclusion correctly applies the language of Rules 41(a)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and therefore we affirm.

I.

This dispute arises out of Swedberg's efforts to collect payments on a loan. Swedberg alleges that Marotzke has failed to repay the loan, and that she has the right to collect.

Swedberg filed her complaint against Marotzke on November 5, 1999. Marotzke did not answer. Instead, on December 7, 1999, he filed a Rule 12(b)(6) motion to dismiss on statute of limitations grounds. On December 21, 1999, Swedberg filed an opposition to the motion to dismiss or, in the alternative, a motion to transfer. She included with her filing affidavits from her attorney (with attached copies of deposition and hearing transcript excerpts and an order from a bankruptcy case) and from a party to the loan (with attached copies of exhibits to the complaint and additional checks). The appended materials had to do with connecting the loan to Minnesota, which was relevant both to establish Minnesota as the forum state for statute of limitations and to support Swedberg's alternative motion for transfer. Marotzke filed his reply brief on January 5, 2000, and he likewise appended his own affidavit and excerpts from a bankruptcy hearing.

Thirteen days later, Swedberg filed her Rule 41(a)(1) notice of voluntary dismissal without prejudice. Marotzke followed with an opposition to the dismissal notice as untimely and a notice of hearing on his Rule 12(b)(6) motion and on his opposition to Swedberg's Rule 41(a)(1) notice. On January 26, 2000, Swedberg filed an opposition to a hearing, asserting that the case had concluded with her notice of dismissal. The court held a hearing on February 10, 2000.

During the hearing, the magistrate judge concluded that Swedberg's dismissal was untimely because the 12(b)(6) motion had been converted to a summary judgment motion by Swedberg's having submitted extraneous material with her opposition. However, he did not rule on the outstanding summary judgment motion. Instead, he gave both parties additional time to submit material in support of their positions and, in response to a question from Swedberg's counsel, confirmed that his ruling was based on his determination that the motion to dismiss was automatically converted to a summary judgment motion upon Swedberg's submission of material with her opposition. The magistrate judge issued a written order memorializing those rulings on February 15, 2000.

On February 17, 2000, Swedberg filed a motion for reconsideration and a supplemental brief in opposition to the motion to dismiss/summary judgment motion. Marotzke also filed a supplemental memorandum in support of his motion to dismiss, along with one affidavit and one exhibit. There was no more briefing and no more hearings were held. Two years later, on February 15, 2002, the magistrate judge issued a second order. He granted Swedberg's motion to reconsider, thereby effectuating her notice of dismissal, and denied Marotzke's motion to dismiss as moot. The magistrate judge ruled that, because Swedberg had filed the dismissal notice before the court had decided to treat the Rule 12(b)(6) motion as a motion for summary judgment, the filing of the notice of dismissal "operated to dismiss the action upon its filing."

II.

Marotzke argues that the district court reached the correct result in its first order because the motion to dismiss had been converted to a summary judgment motion and Swedberg could no longer unilaterally dismiss her complaint. The issue is whether the filing of extraneous material automatically converts a Rule 12(b)(6) motion into a summary judgment motion or whether some action by the district court, such as accepting the extraneous material or converting the motion, is necessary. We review de novo the district court's conclusion of law as to the interpretation of Rules 41(a)(1) and 12(b)(6). See DP Aviation v. Smiths Indus. Aerospace & Def. Sys. Ltd., 268 F.3d 829, 846 (9th Cir. 2001) ("We also review de novo a district court's interpretation of the Federal Rules of Civil Procedure as an application of law.").

A.

There is no dispute as to the sequence of events implicating the rules at issue. Marotzke chose not to file an answer. Rather, he filed a motion to dismiss, alleging that Swedberg's claim was barred by the statute of limitations. He styled it a Rule 12(b)(6) motion, and he confined his argument to facts contained in the complaint. Marotzke filed no accompanying affidavits or documents other than a memorandum of points and authorities.

Swedberg opposed the motion and sought alternative relief in the event the district court found that her claim was barred by an Arizona three-year statute of limitations. She first asked that the lawsuit be transferred under 28 U.S.C. § 1406 to the District of Minnesota, as she asserted that it could have been brought there. She also asked that, if the Arizona statute of limitations was a bar, the complaint be dismissed without prejudice so she could re-file it in Minnesota.2 She attached an affidavit from one of her attorneys attesting to the accuracy of appended deposition and bankruptcy court hearing transcripts and an affidavit of a party to the loan who described facts surrounding the loan transaction. These extraneous materials did not relate to the merits of the claim, but rather to Swedberg's effort to establish Minnesota as an appropriate venue. Marotzke filed a single reply brief, responding to all issues, and attached a bankruptcy court transcript and his own affidavit discussing the facts of the case.

Swedberg then filed her notice of dismissal without prejudice, asserting that it was effective upon filing "since the defendant has not served an Answer or Motion for Summary Judgment."3

Two of the Federal Rules of Civil Procedure are at issue. The relevant language of Rule 12(b) states:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Rule 41(a)(1) addresses the effect of a voluntary dismissal by plaintiff:

[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, whichever first occurs.... Unless otherwise stated in the notice of dismissal ..., the dismissal is without prejudice....

B.

Our circuit has not been presented with the exact question of this intersection of Rules 12(b)(6) and 41(a)(1). However, we have separately considered the question of timing for Rule 41(a)(1) notices and the requirements for conversion of a Rule 12(b)(6) motion. Based on the holdings of these cases, we conclude that the district court must be affirmed.

In Hamilton v. Shearson-Lehman American Express, Inc., 813 F.2d 1532 (9th Cir.1987), Rule 41(a)(1) was at issue. After the plaintiff filed his complaint, the parties entered into a conditional stipulation that the defendants would not be required to file an answer. The plaintiff later filed a Rule 41(a)(1) notice of dismissal, which was heard and denied by the district court. 813 F.2d at 1534. This court reversed, noting that the district court was not required to act to effectuate the dismissal. "A voluntary dismissal by a plaintiff under this subsection automatically terminates the action upon the filing of the dismissal with the clerk." Id. at 1534-35 (citing Miller v. Reddin, 422 F.2d 1264, 1266 (9th Cir.1970)). Following a recitation of the rule, we noted:

The language of this rule leaves little room for interpretation. Until an adverse party files an answer or a motion for summary judgment, the plaintiff can have the action dismissed merely by filing a notice of dismissal with the clerk. Rule 41(a)(1)(i) does not require leave of court to dismiss the action. The purpose of the rule is to facilitate the voluntary dismissal of an action, but safeguard abuse by limiting its application to an early stage of the proceedings.

Id. at 1534 (internal quotation marks omitted).

Our circuit has also considered the conversion of Rule 12(b)(6) motions to dismiss into summary judgment motions and essentially concluded that a district court must take some affirmative action to effectuate conversion. The first of these cases, North Star International v. Arizona Corp. Commission, 720 F.2d 578 (9th Cir.1983), is particularly relevant. In response to the complaint, the Commission filed a Rule 12(b)(6) motion which the district court grant...

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