United States District Court, S.D. Alabama, Southern Division
NOTICE AND ORDER
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
action is before the Court on the Plaintiff's motion to
voluntarily dismiss Defendant Christopher Orstadt under
Federal Rule of Civil Procedure 41(a)(2), which requests that
“this Court to enter an Order granting her Motion to
Dismiss…Orstadt from this case and dismissing all
claims against him, without prejudice.” (Doc. 13).
Generally, “[t]he district court enjoys broad
discretion in determining whether to allow a voluntary
dismissal under Rule 41(a)(2).” Pontenberg v.
Boston Sci. Corp., 252 F.3d 1253, 1255 (11th Cir. 2001)
(per curiam). However, some courts of appeal have held that
“if there is reason for a court to believe that it does
not have subject matter jurisdiction, the court must address
that issue before ruling on a motion for voluntary
dismissal[, because] without subject matter jurisdiction, a
district court c[an]not properly engage in the balancing
process and exercise of discretion required by Rule
41(a)(2).” Walter Kidde Portable Equip., Inc. v.
Universal Sec. Instruments, Inc., 479 F.3d 1330, 1342
(Fed. Cir. 2007) (citing Shortt v. Richlands Mall
Assocs., Inc., 922 F.2d 836 (4th Cir. 1990)
(Table), 1990 WL 207354, at *4 (4th Cir. 1990) (per curiam)
case was removed from state court under 28 U.S.C. §
1441(a), with diversity of citizenship under 28 U.S.C. §
1332(a) alleged as the sole basis for the Court's subject
matter jurisdiction. However, “[d]iversity jurisdiction
requires complete diversity; every plaintiff must be diverse
from every defendant.” Triggs v. John Crump Toyota,
Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). The removing
defendant admits that Orstadt, like the Plaintiff, was a
citizen of Alabama at the time of removal, but argues that
Orstadt's citizenship should be disregarded because he
has been fraudulently joined. At present, the Court has made
no ruling on the issue of fraudulent joinder, and the
existence of complete diversity at the time of removal is in
the undersigned notes that Orstadt has not yet served either
an answer or a motion for summary judgment in this action;
Federal Rule of Civil Procedure 41(a)(1)(A)(i) permits a
plaintiff to dismiss an opposing party without a court order
by filing a notice of dismissal “before the opposing
party serves an answer or a motion for summary
judgment.” See Klay v. United Healthgroup,
Inc., 376 F.3d 1092, 1106 (11th Cir. 2004) (“Rule
41 allows a plaintiff to dismiss all of his claims against a
particular defendant…”). “It is well
established that Rule 41(a)(1)[(A)](i) grants a plaintiff an
unconditional right to dismiss his complaint by notice and
without an order of the court at any time prior to the
defendant's service of an answer or a motion for summary
judgment. The dismissal is effective immediately upon the
filing of a written notice of dismissal, and no subsequent
court order is required. The fact that a notice
of dismissal is styled ‘motion to dismiss' rather
than ‘notice of dismissal' is without
consequence.” Matthews v.
Gaither, 902 F.2d 877, 880 (11th Cir. 1990) (per curiam)
(emphasis added). Accordingly, the Court treats
Plaintiff's Rule 41(a)(2) motion (Doc. 13) as a Rule
41(a)(1)(A)(i) notice of dismissal of all claims against
Defendant Orstadt without prejudice, effective immediately
upon its filing.
the Clerk of Court is DIRECTED to terminate
the Plaintiff's filing (Doc. 13) as an active motion, and
to terminate Orstadt as an active party to this action.
Orstadt's Rule 12(b)(6) motion to dismiss (Doc. 2),
treated as a motion for summary judgment (see Doc.
12), is therefore MOOT.
DONE and ORDERED
 See also Harden v. Field Mem'l
Cmty. Hosp., 265 Fed.Appx. 405, 408 (5th Cir. 2008) (per
curiam) (unpublished) (“Here, the district court had
good reason to be concerned about its subject matter
jurisdiction. Harden disputed the court's jurisdiction by
moving to remand. Consequently, if the district court had
considered Harden's motion to dismiss Quorum under Rule
41(a)(2) before deciding Harden's remand motion, it would
have run the risk of acting without jurisdiction. Given these
circumstances, we find that the district court did not err by
first resolving its jurisdictional concerns by ruling on
Harden's motion to remand before ruling on her Rule
41(a)(2) motion. See Walter Kidde Portable Equip., Inc.
v. Universal Sec. Instruments, Inc., 479 F.3d 1330, 1342
(Fed. Cir.2007) (finding that the district court erred when
it granted the plaintiff's motion to dismiss under Rule
41(a)(2) without first resolving its subject matter
 Orstadt has filed a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) (Doc. 2),
which the Court has treated as a motion for summary judgment
under the procedure in Rule 12(d) (see Doc. 2). The
undersigned does not deem that motion to be a motion for
summary judgment served by Orstadt; thus, the
Plaintiff's right to voluntarily dismiss him under Rule
41(a)(1)(A)(i) has not been extinguished.
 Under S.D. Ala. GenLR 73(c) and 28
U.S.C. § 636(c), this case has been randomly assigned to
the undersigned Magistrate Judge for all purposes, including
entry of a final judgment, as set out in the Notice of
Assignment to United States Magistrate Judge for Trial
entered January 19, 2018. (Doc. 7). The Notice of Assignment
informs the parties that they “have the right to have
this action reassigned to a United States District Judge for
trial and disposition.” Inasmuch as no party, to date,
has requested reassignment of this case to a District Judge,
there presently exists implicit consent to the undersigned
conducting all proceedings in this case. See Chambless v.
Louisiana-Pac. Corp., 481 F.3d 1345, 1350 (11th Cir.
2007) (“[T]he Supreme Court held in Roell v.
Withrow, 538 U.S. 580, 123 S.Ct. 1696, 155 L.Ed.2d 775
(2003), that consent to a magistrate judge's jurisdiction
can be inferred from a party's conduct during litigation.
Id. at 582, 123 S.Ct. 1696. The Court refused to
adopt a bright-line rule requiring express consent, ...