41(a) – Voluntary Dismissal
The plaintiff may dismiss an action without court order by filing:
i. Notice of dismissal before opposing party serves either an ANSWER or a MOTION FOR SUMMARY JUDGEMENT. (So if the opposing party serves a 12(b)(6) motion, then it doesn’t count. That’s not an answer or motion for summary judgment.) There was a 9th circuit case about two parties who invested two work months before the plaintiff dismissed it. But he can do that!
ii. Stipulation of dismissal signed by all parties who have appeared. What does appeared mean in this context?
(B) Unless notice or stipulation of dismissal states otherwise, dismissal without prejudice. UNLESS HE PULLS THAT *&^% TWICE! In that case, “if the plaintiff previously dismissed any federal or state court action based on or including same claim, notice of dismissal operates as adjudication on merits.” I’m guessing adjudication on merits means with prejudice.