Judges: Barrett
Filed: Apr. 30, 2019
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 18-2636 PEARL CARTER, Plaintiff-Appellant, v. CITY OF ALTON, MICHAEL MORELLI, and JEFFREY HENDERSON, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Illinois. Nos. 17-cv-00896; 17-cv-00897— J. Phil Gilbert, Judge. _ ARGUED MARCH 29, 2019 — DECIDED APRIL 30, 2019 _ Before HAMILTON, BARRETT, and ST. EVE, Circuit Judges. BARRETT, Circuit Judge. Pearl Carter moved to voluntarily dism
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 18-2636 PEARL CARTER, Plaintiff-Appellant, v. CITY OF ALTON, MICHAEL MORELLI, and JEFFREY HENDERSON, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Illinois. Nos. 17-cv-00896; 17-cv-00897— J. Phil Gilbert, Judge. _ ARGUED MARCH 29, 2019 — DECIDED APRIL 30, 2019 _ Before HAMILTON, BARRETT, and ST. EVE, Circuit Judges. BARRETT, Circuit Judge. Pearl Carter moved to voluntarily dismi..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2636
PEARL CARTER,
Plaintiff‐Appellant,
v.
CITY OF ALTON, MICHAEL MORELLI, and JEFFREY HENDERSON,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
Nos. 17‐cv‐00896; 17‐cv‐00897— J. Phil Gilbert, Judge.
____________________
ARGUED MARCH 29, 2019 — DECIDED APRIL 30, 2019
____________________
Before HAMILTON, BARRETT, and ST. EVE, Circuit Judges.
BARRETT, Circuit Judge. Pearl Carter moved to voluntarily
dismiss the complaint that she had filed against Michael Mo‐
relli, Jeffrey Henderson, and the City of Alton. Her motion did
not explicitly say that she sought dismissal without prejudice,
but it did state that “neither party will be prejudiced by the
granting of this Motion.” The defendants responded, arguing
that the district court should grant Carter’s motion—but that
it should do so with prejudice. Carter’s only reply was to
2 No. 18‐2636
amend her motion to specify that she sought dismissal with‐
out prejudice.
The district court dismissed Carter’s complaint with prej‐
udice. Carter filed a motion for reconsideration,1 requesting
one of two remedies: she asked that the court either reinstate
her action or enter an order dismissing it without prejudice.
The court denied Carter’s motion for reconsideration, and she
appeals.
Because the defendants had already filed an answer to
Carter’s complaint, she could only voluntarily dismiss her ac‐
tion if all the parties signed a stipulation of dismissal or if she
secured a court order. See FED. R. CIV. P. 41(a). Carter acknowl‐
edges that she did not file a signed stipulation, so the district
court properly construed Carter’s motion as one seeking its
approval to dismiss her case. Under Rule 41(a)(2), the court
had discretion to dismiss the case either with or without prej‐
udice. The court determined that a dismissal with prejudice
was proper, and it was within its discretion to do so.
1 Carter did not make clear whether she brought her motion for recon‐
sideration under Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Pro‐
cedure. The district court was correct to construe it as a Rule 59(e) motion,
because we have said that the important question for categorizing these
motions is their timing. See Lac Du Flambeau Band of Lake Superior Chippewa
Indians v. State of Wis., 957 F.2d 515, 517 (7th Cir. 1992) (noting that all sub‐
stantive motions filed within the relevant time period described by Rule
59(e) fall under that rule regardless of the nomenclature associated with
the motion). Rule 59(e) governs motions to reconsider filed within 28 days
of a judgment, and Carter filed her motion within that time period. We
thus treat Carter’s motion as falling under Rule 59(e) and review the dis‐
trict court’s legal determinations on the motion de novo. See Avery v. City
of Milwaukee, 847 F.3d 433, 438 (7th Cir. 2017).
No. 18‐2636 3
But before the court entered the dismissal order, it should
have given Carter an opportunity to withdraw her voluntary
dismissal motion. Babcock v. McDaniel, 148 F.3d 797, 799 (7th
Cir. 1998) (“When a plaintiff moves for dismissal without
prejudice, the district court may not dismiss the action with
prejudice without first providing the plaintiff a reasonable
opportunity to withdraw the motion.”); Marlow v. Winston &
Strawn, 19 F.3d 300, 305 (7th Cir. 1994) (“[A] plaintiff who
moves for dismissal without prejudice under Rule 41(a)(2)
must be given a reasonable opportunity to withdraw his mo‐
tion in the event the district court grants the motion but only
with prejudice.”). Carter requested just such an opportunity,
and the court refused to give it to her. That was error.
We thus VACATE the district court’s judgment dismissing
Carter’s action with prejudice, VACATE the order of costs,
and REMAND the case to the district court for proceedings
consistent with this opinion.