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Plaintiff could nonsuit after defendant's motion to dismiss.

Byline: Virginia Lawyers Weekly

Defendant objected to plaintiff's notice of voluntarily dismissal without prejudice, which plaintiff filed after defendant moved to dismiss the suit. Defendant argued its motion to dismiss was actually a motion for summary judgment because it relied upon additional documents. The court held that, until it converted the motion to a motion for summary judgment, it remained a motion to dismiss, thus allowing the plaintiff to voluntarily dismiss the suit without prejudice.


Selena Shannon Walters sued the Bank of New York Mellon Trust Company, N.A., and Trustee Services of Virginia LLC in the Roanoke circuit court. Defendants filed a notice of removal on July 13, 2018, alleging diversity jurisdiction.

On July 20, 2018, Trustee Services filed a motion to dismiss plaintiff's claims against it with prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On Aug. 3, 2018, Walters filed a notice of voluntary dismissal without prejudice of her claim against defendant Trustee Services only, pursuant to Rule 41(a)(1)(A)(i). Trustee Services objects to Walters's request for dismissal.


Rule 41(a)(1)(A)(i) provides that a plaintiff may dismiss an action without court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. In its objection, Trustee Services argues that its pending motion to dismiss asks the court to consider documents referred to but not attached to the plaintiff's complaint and, to consider those documents, the court must convert the motion to a motion for summary judgment pursuant to Rule 12(d). Trustee Services insists dismissal without prejudice pursuant to Rule 41(a)(1)(A)(i) is thus improper because the court is required to treat its motion to dismiss as a motion for summary judgment.

The Fourth Circuit had occasion to consider this very argument in Finley Lines Joint Protective Board v. Norfolk Southern Corporation, 109 F.3d 993 (4th Cir. 1997). The court there held a Rule 12(b)(6) motion to dismiss is not converted into a motion for summary judgment automatically at the time it is served simply because matters outside the pleadings are attached thereto. Rather, Rule 12(d) plainly gives the court discretion to determine whether or not to exclude matters outside of the pleadings. The rule also requires a court to provide the parties with notice of its intention to treat a motion to dismiss as one for summary judgment and "a reasonable opportunity to present all the material that is pertinent to the motion." Thus, "a Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as one for summary judgment until the district court acts to convert the motion by indicating it will not exclude from its consideration of the motion the supporting extraneous materials.

Based on the Fourth Circuit's holding in Finley, the court will overrule Trustee Services's objection to plaintiff's request for dismissal. Walters's Rule 41 notice was filed before Trustee Services served either an answer or motion for summary judgment, and Walters is entitled to dismiss sua sponte her claims against Trustee Services without prejudice.

Suit dismissed without prejudice.

Walters v. The Bank of New York Mellon Trust Company, N.A., Case No. 18-cv-00340, Sept. 6, 2018. WDVA at Roanoke (Urbanski). VLW No. 018-3-377, 4 pp.

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Title Annotation:Walters v. The Bank of New York Mellon Trust Co., U.S. District Court for the Western District of Virginia
Publication:Virginia Lawyers Weekly
Date:Sep 23, 2018
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