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6. Is the court likely to grant the defendant's motion?
The plaintiff then filed a third action, alleging the same claims but also including additional allegations that were responsive to the defendant's second motion. The defendant has moved to dismiss the third action; the plaintiff opposes the motion.
Instead of opposing the motion to dismiss, the plaintiff voluntarily dismissed the action and filed a new action, alleging the same claims but also addressing the pleading defects outlined in the defendant's motion to dismiss. The defendant then moved to dismiss the second action, and the plaintiff again voluntarily dismissed the second action instead of filing opposition papers.
A plaintiff filed an action in federal district court and served the defendant with the summons and complaint. The defendant moved to dismiss the complaint for failure to state a claim.
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D is correct. A plaintiff may file a notice of dismissal for his own case without leave of the court if the defendant has not yet filed an answer or a motion for summary judgment. The dismissal will be without prejudice unless the plaintiff has previously dismissed any federal or state court action on the same claim. If the plaintiff previously dismissed any action based on or including the same claim, the notice of dismissal operates as an adjudication on the merits. In this case, when the plaintiff moved to dismiss his claim for the second time, he moved to dismiss the same claim he had originally filed. Therefore, this time, his notice of dismissal operated as an adjudication on the merits, and the defendant's motion should be granted.
A is incorrect. Although the plaintiff did address the defendant's pleadings when he renewed his claim, the new filings still contained the same claims he originally alleged. Because the plaintiff had previously dismissed the same claim, his voluntary dismissal will operate as an adjudication on the merits.
B is incorrect. A plaintiff can file a notice of dismissal for his own case without leave of the court if the defendant has not yet filed an answer or a motion for summary judgment. The dismissal will be without prejudice unless the plaintiff has previously dismissed the same claim. In this case, although the defendant had not yet answered or filed a motion for summary judgment, the plaintiff had already once voluntarily dismissed the same claim. Therefore, the second claim will operate as an adjudication on the merits, and the defendant's motion will be granted.
C is incorrect. If the defendant has not filed an answer or motion for summary judgment, and the plaintiff has not also previously dismissed the same claim, the plaintiff can dismiss an action without moving for leave from the court. However, in this case, the plaintiff had already once voluntarily dismissed the same claim. Therefore, the second time the plaintiff dismissed the same claim, the notice of dismissal acted as an adjudication on the merits.