United States District Court, D. South Carolina, Anderson Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
matter is before the court on Paige Elizabeth Burrows'
(“Burrows”) motion pursuant to Rules 59(e) and
60(b) of the Federal Rules of Civil Procedure requesting that
the court reconsider its April 23, 2018 Order dismissing the
case for lack of subject-matter jurisdiction. (April 23, 2018
Order, ECF No. 13.) After consideration, the court grants
motion to alter or amend the judgment under Rule 59(e) may be
made on three grounds: “(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear
error of law or prevent manifest injustice.”
Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.
1993). “Rule 59(e) motions may not be used, however, to
raise arguments which could have been raised prior to the
issuance of the judgment . . . .” Pac. Ins. Co. v.
Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998). “In general reconsideration of a judgment after
its entry is an extraordinary remedy which should be used
sparingly.” Id. (internal citation and
quotation marks omitted)
60(b) “invest[s] federal courts with the power in
certain restricted circumstances to vacate judgments whenever
such action is appropriate to accomplish justice.”
Compton v. Alton S.S. Co., 608 F.2d 96, 101-02 (4th
Cir. 1979) (internal quotation marks omitted). “The
remedy provided by the Rule, however, is extraordinary and is
only to be invoked upon a showing of exceptional
circumstances.” Id. at 102.
argues that the court erred in failing to address her request
to voluntarily dismiss Kyle Clyde Ryan (“Kyle
Ryan”) if he was found to be a South Carolina citizen
and further attaches to this motion a notice of dismissal
pursuant to Rule 41(a)(1) of the Federal Rules of Civil
Procedure. (Mot. Reconsider, ECF No. 15, Ex. 1 (Not.
Dismissal), ECF No. 15-1.) After thorough review of the
record in this case, the court finds that reconsideration is
appropriate. Rule 41(a)(1)(i) allows a plaintiff to
“dismiss an action without a court order by filing . .
. a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment.”
Fed.R.Civ.P. 41(a)(1)(i). Although in artfully stated, the
court construes the last sentence in Burrows' response in
opposition to Defendants' motion to dismiss as a notice
of voluntary dismissal pursuant to Rule 41(a)(1)(i).
requested to voluntarily dismiss Kyle Ryan as a party
pursuant to Rule 41(a)(1)(i) if the court determined that
diversity jurisdiction was lacking. (Resp. Opp'n Mot.
Dismiss 5, ECF No. 11.) The Plaintiff's notice of
voluntary dismissal is voluntary. “The contingent
nature of the plaintiff['s] request simply does not
distinguish its voluntariness from, for example, a
non-contingent request for a dismissal under Rule 41 of the
Federal Rules of Civil Procedure.” Dearth v.
Mukasey, 516 F.3d 413, 415 (6th Cir. 2008) (finding
appeal improper because dismissal was voluntary despite the
contingent nature of plaintiff's request for voluntary
dismissal). However, the Plaintiff cannot voluntarily dismiss
a party after judgment has been entered.
[Rule 41] is based on the consideration that when a voluntary
dismissal is without prejudice the plaintiff is placed
‘in a legal position as if he had never brought the
first suit' and has the right to bring a later suit on
the same cause of action without adjudication of the merits.
Id. (quoting LeCompte v. Mr. Chip, Inc.,
528 F.2d 601, 603 (5th Cir. 1976)); see also Kelly v.
Great Atl. & Pac. Tea Co., 86 F.2d 296, 297 (4th
Cir. 1936). Therefore, in order to give effect to the
Plaintiff's notice of voluntary dismissal, the April 23,
2018 Order is deemed moot and the court vacates its April 23,
2018 judgment. Further, Kyle Ryan is dismissed without
prejudice as a party in this case. Based on the foregoing,
Burrows' motion is granted.
that the court's April 23, 2018 judgment, docket number
14, is vacated. It is further
that Burrows' motion for reconsideration, docket number
15, is granted as set out. It is further
that Defendant Kyle Ryan is dismissed from this action