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HAROLD E. BROUPHY, JR. v. USAA CASUALTY INSURANCE COMPANY.

ORDER

CARL BARBIER, District Judge

Before the Court is Plaintiff's Motion to Dismiss Case (Rec. Doc. 12). FED. R. CIV. P. 41(a)(1)(A) provides that a plaintiff may voluntarily dismiss his complaint by filing a notice of dismissal before the opposing party files either an answer or a motion for summary judgment. In this case, the defendant has yet to file an answer, however the defendant has filed a motion to dismiss for lack of jurisdiction (Rec. Doc. 7). Federal courts have held that a plaintiff's right to voluntary dismissal is not terminated by a motion to dismiss under Rule 12. Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 474 F. 2d 250, 254 (5th Cir. 1973) ("A notice of voluntary dismissal filed after motions challenging the jurisdiction of the person of the defendant is not untimely."); 9 CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2363 ("A motion to dismiss is neither an answer nor . . . a motion for summary judgment."). Therefore, the Plaintiff in this case is entitled to voluntarily dismiss his case upon notice, and this Court will construe Plaintiff's motion to dismiss as a notice of dismissal under Rule 41(a)(1)(A)(I). Accordingly,

IT IS ORDERED that the Clerk of Court is directed to DISMISS the above captioned case without prejudice.

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BROUPHY v. USAA CASUALTY INSURANCE COMPANY
(Dec 3, 2007)