DOE v. CITY OF BATON ROUGE (2019)

Jane Doe appeals the district court's order dismissing her case with prejudice, arguing that the dismissal should have been without prejudice. We agree and therefore REVERSE.

“[A] plaintiff has an absolute right to dismiss a lawsuit before the defendant has filed an answer or summary judgment motion.” Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977). The defendants here had no opportunity to do either of those things—they had, after all, not been served with the complaint. The plaintiff thus still possessed the legal right to dismiss her case without prejudice. See Fed. R. Civ. Pro. 41(a)(1). The judgment is REVERSED, and the case is remanded with instructions to enter an order dismissing Jane Doe's complaint without prejudice.

FOOTNOTES

FOOTNOTE.  

PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.