BROUPHY v. USAA CASUALTY INSURANCE COMPANY

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 (5^th 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.