USCA1 Opinion
September 26, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCIUT
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No. 94-2276
JUAN RAMON MATTA-BALLESTEROS,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Lynch, Circuit Judges.
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Juan Ramon Matta-Ballesteros on brief pro se.
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Guillermo Gil, United States Attorney, and Fidel A. Sevillano Del
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Rio, Assistant United States Attorney, on brief for appellees.
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Per Curiam. Plaintiff-appellant Juan Ramon Matta
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Ballesteros ("Matta"), appeals pro se from the district
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court's dismissal of his action "with prejudice" following
his Notice of Voluntary Dismissal pursuant to Fed. R. Civ. P.
41(a)(1)(i). We vacate the district court's judgment
dismissing the case with prejudice and remand with
instructions to dismiss the case without prejudice.
I. Timeliness of Appeal
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Defendants-appellees, the United States of America, et
al., argue that Matta's appeal is untimely and should be
dismissed for lack of jurisdiction. We disagree. In a civil
case such as this in which the United States or an officer or
agency thereof is a party, a notice of appeal must be filed
within sixty days after entry of the judgment appealed from.
See Fed. R. App. P. 4(a)(1). A timely motion pursuant to
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Fed. R. Civ. P. 59(e) tolls the running of the appeal period.
See Fed. R. App. P. 4(a)(4). "The timeliness of a Rule 59(e)
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motion is determined by the date of service, not the date of
filing." Air Line Pilots Ass'n v. Precision Valley Aviation,
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Inc., 26 F.3d 220, 223 n.3 (1st Cir. 1994).
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The district court judgment dismissing Matta's case with
prejudice was entered on September 8, 1994. Matta served his
motion to reconsider by mail on September 13, 1994. See Fed.
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R. Civ. P. 5(b) (service by mail is complete upon mailing).
Therefore, service of the motion occurred within 10 days of
the entry of the district court's judgment and the motion was
timely. See Fed. R. Civ. P. 59(e). Given the timely filing
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of Matta's motion to reconsider, the sixty-day appeal period
began to run on November 21, 1994, the date on which the
district court's denial of the motion was entered. Matta
filed his notice of appeal on December 5, 1994, and it is
therefore timely with respect to both the dismissal of his
case and the denial of his motion to reconsider. Accordingly,
this court has jurisdiction to consider Matta's appeal.
II. Dismissal with Prejudice
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Matta argues that the district court violated the clear
meaning of Fed. R. Civ. P. 41(a)(1)(i) in dismissing his
complaint "with prejudice" instead of without prejudice.
Rule 41(a)(1)(i) provides, in relevant part, as follows:
an action may be dismissed by the plaintiff without
order of court (i) by filing a notice of dismissal
at any time before service by the adverse party of
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an answer or of a motion for summary judgment, . .
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. . Unless otherwise stated in the notice of
dismissal or stipulation, the dismissal is without
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prejudice, . . . .
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(emphasis added).
Matta filed a Notice of Dismissal pursuant to Fed. R.
Civ. P. 41(a)(1)(i) on August 30, 1994. At that time,
defendants had filed a motion to dismiss (on August 4, 1994).
Defendants had not filed, however, either an answer to the
complaint or a motion for summary judgment. Therefore, "the
plaintiff had the right voluntarily to dismiss the case at
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any time before an answer or a motion for summary judgment
was served. The plaintiff properly invoked that right, and
the district court had no power to condition its dismissal."
Universidad Central del Caribe, Inc. v. Liaison Comm. on
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Medical Educ., 760 F.2d 14, 19 (1st Cir. 1985). See also
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Manze v. State Farm Ins. Co., 817 F.2d 1062, 1065-67 (3d Cir.
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1987) (reversing dismissal of claim with prejudice where
defendant had filed a motion to dismiss prior to plaintiff's
notice of voluntary dismissal, but had neither answered the
complaint nor moved for summary judgment).
The judgment of the district court dismissing the case
with prejudice is vacated and the case is remanded with
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instructions to dismiss the case without prejudice. Costs to
appellant.
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