*2 KELLY, Before NEBEKER and FER- REN, Judges. Associate PER CURIAM: presents single This case question: allowing whether the trial court erred in plaintiff, Sales, Jeanne M. enter a dismissal without defendant, ap- dice of her suit pellant Beryl Bernay, appellant after filed a motion to dismiss for failure to state granted. a claim for which relief can be appellant’s We hold that bare motion to dismiss for failure to state a claim did not deprive appellee of her dismissal under the terms of 41(a)(l)(i), and we decline to bend the Thus, opposite rule to reach the result. we affirm.
I. appellee, On November Jeanne M. a resident of the District of Co- lumbia, complaint Superior filed in Court a against appellant, Beryl Bernay, a resident complaint alleged alien- of New York. The ation of affection and criminal conversa- tion, thereafter, arising Shortly April from relations with appellee’s spring husband “in the late pellee appellant filed and served on a notice during the summer of 1978.” 2,May of dismissal of the action. On after Judge hearing, accepted John R. Hess action,
Appellant appear not did 20,1978, and on December the clerk entered dismissal. *3 18, 1979, January default her. On reconsider, Appellant May moved but on having entry received notice of the of de- by again 24 the court memorandum order fault, appellant special appearance made a Super.Ct.Civ.R. 41(a)(l)(i), ruled that under for the “Defendant’s Mo- appellee complaint could dismiss her with- Alternatively tion to Dismiss or Defend- prejudice right. out as a matter of Quash ant’s Motion to Service of Process.” Appellant timely appealed this order. requested The motion dismissal of the com- ll-721(a)(l); See D.C. Code § plaint prejudice, supporting with and the App. panel R. 4 A divided of this points memorandum of and authorities originally court reversed and remanded the presented possible grounds several for re- Bernay D.C.App., case. (1) subject jurisdiction, lief: lack of matter (1980). Super.Ct.Civ.R. 12(bXl); (2) per- Following see A.2d lack of for jurisdiction, 12(b)(2); (3) sonal see id. R. rehearing, we now affirm. conveniens, forum non see D.C. Code 13-425; (4) insufficiency of service of II.
process,
Super.Ct.Civ.R. 12(b)(5);
see
(5) failure to state a claim for which relief
Appellant’s principal contention is
12(b)(6).
granted,
can
see
id. R.
Also
the trial court should have considered
accompanying the motion were four affida-
appellant’s motion to dismiss for failure to
opposition
Appellee
vits.
filed an
to this
summary
state
claim as
a motion for
motion.
judgment,
precluded ap-
which would have
26, 1979,
On
for
March
the date set
pellee’s voluntary dismissal. We conclude
dismiss,
hearing
motion to
legal
that the affidavits and
memorandum
parte praecipe
filed an ex
of volun-
by appellant
support
submitted
of her
tary
judge,
dismissal. The motions
then motion to dismiss were insufficient
to con
Superior
Judge
Pryor, ap-
Court
William C.
summary
vert that motion into a motion for
Later, however,
proved
praecipe.
judgment. Accordingly,
challenge
her
parently
appellant’s request, Judge Pryor
ground
dismissal on this
fails.
praecipe
amended the
to read “with
Superior
41(a)(l)(i) permits
Ct.Civ.R.
Appellee
dice with leave to seek costs.”
plaintiff voluntarily to dismiss an action
reconsideration,
then filed
a motion
ob-
any
without
“at
time before ser-
jecting
to the conditions that
court
by
party
vice
the adverse
of an answer or of
praecipe
inserted in the
of dismissal. On
summary judgment,
motion for
whichever
April
hearing, Judge Pryor
after a
void-
praecipe.
A
ed the
first occurs .
court must treat a
Super.Ct.Civ.R. 41(a) provides
prejudice, except
in full:
al is without
that a notice
operates
adjudication upon
as
(a)
an
VOLUNTARY DISMISSAL: EFFECT
by
plaintiff
the merits when filed
who has
THEREOF.
PLAINTIFF;
any
once dismissed in
of the United
BY
BY STIPULATION.
Subject
23(e),
provisions
States or of
state an action based on
of Rule
statute,
any applicable
including
the same
and of
claim.
by
Except
BY
action
be dismissed
with-
ORDER OF COURT.
(i) by filing
provided
paragraph
out order of court
a notice of
of this subdivision
rule,
dismissal at
time before service
of this
an action shall not be dismissed
plaintiffs
upon
adverse
of an
or of motion for
at the
instance save
order of
answer
occurs,
summary judgment,
court and
terms and
whichever first
condi-
(ii) by filing
stipulation
proper.
or
signed by
tions as the court deems
If a
of dismissal
coun-
appeared
pleaded by
all
has been
a defendant
who have
terclaim
prior
plaintiff’s
to the service
him of the
action. Unless otherwise stated
stipulation,
notice of dismissal or
the dismiss-
motion to
action shall not be
Rivers,
pleading,”
motion
dismiss for failure to state a
side the
see Richardson v.
granted,
claim for which relief can be
Su
333, 335,
U.S.App.D.C.
per.Ct.Civ.R. 12(bX6), as a motion for sum
McGrath,
(1964);
Sardo v.
mary judgment,
id. R.
when “matters
pleading
outside the
are
accompanying appellant’s
affidavits
12(b);2
not excluded
the court.” Id. R.
to dismiss related to her claim of insuffi-
Stanton,
see Carter v.
U.S.
process,
Super.Ct.Civ.R.
cient service of
(1972) (per
App.D.C. 241,
answer
summary judgment
F.2d
(or
equivalent
(per curiam).
Rule
ac-
41(a)(1),
companied by
originally adopted in
was to confine
ings”). Thorp, supra at
D.C. Elec-
early
dismissal “to an
tronics, Inc.,
*6
Littman,
proceeding,”
41(a)(l)(i).
Civ.R.
rule
also allows the
480: a
right
could dismiss as of
plaintiff only
voluntary
one
dismissal with-
only before the defendant served an an
prejudice;
out
the second comes with
Moore’s,
swer.
See 5
In
¶41.01[2].
Thorp, supra
dice.
D.C. Electron-
the rule was
to
amended
include ser
ics, Inc.,
Super.Ct.Civ.R.
vice of
summary judgment by
a motion for
41(a)(l)(i).
the adverse
as a further
on
limitation
plaintiff’s right
the
to dismiss. See id.
case, appellant
In this
filed a
to
motion
Electronics,
¶41.01[4].
dismiss
prejudice
suit with
on
Inc., supra at 296-97.
grounds, including
various
failure to state a
claim,
relating
and attached four affidavits
Harvey
derogation
in
stands
of the com-
alleged inadequacy
proc-
to the
of
service
promise
41(a)(l)(i)
in
reflected
Rule
toas
ess. This motion was
to bar
insufficient
ease
frequency
the
and
with
voluntary
express
dismissal under the
terms
can
prejudice.
tiff
dismiss
suit without
12(b)
41(a)(l)(i).
of Super.Ct.Civ.R.
and
Thorp, supra
Harvey,
at 1175-76.
Part II
moreover, presents
poten-
and
awkward
tially inequitable
to
alternative
the rule:
Looking
light
at this case in
the Har-
pertinent
Harvey
under
exception
considerations
vey
plaintiff’s right
to the
—whether
dismissal,
the defendant
voluntary
has undertaken
we recognize that a
large
sufficiently
12(b)(6)
“amount
research
defendant’s Rule
motion
re-
preparation,” id. at
quire
prepara-
whether “the mer-
considerable “research and
controversy
its of the
squarely
tion,”
Harvey,
[have been]
raised,” id., and
plaintiff[’s]
“squarely
whether “the
merits of
case.
raise[ ]”
small,”
case,
chance of success on
however,
the merits
this
because
filed
[is]
tests,
vague
id. at 107-08—are
susceptible
her notice of
dismissal before the
motion,
12(b)(6)
hearing
appellant’s
on
Rule
tion —even a meritorious one—unless the
pass
12(b)(6)
court had no occasion to
on
supported
the trial
the Rule
defendant has
the merits of the defense.
In these circum-
plead-
motion
outside the
with “matters
stances,
to
in order
determine whether
12(b)(6)
ings”
the Rule
and thus converted
pellee’s chances of success
the merits
on
summary judg-
motion
into a motion
sufficiently
right
small to
were
limit her
ment.
Harvey
dismissal under the
ex-
appellant’s
If we
Rule
were to hold that
effect,
required,
we would be
ception,
to
12(b)(6)
supported only
to
motion
12(b)(6)
on
Rule
our-
rule
motion
law,
by a
blocked appel-
memorandum of
selves.
voluntary dismissal
lee’s
to
under
so,
inviting
to do we
If we were
would be
moreover,
we
exception,
would
whose
to dismiss
any defendant
motion
uncomfortably
holding
to
come
close
that
12(b)(6)
prejudice under Rule
has been
with
(whether
12(bX6)
Rule
or not
plaintiff’s voluntary
dis-
frustrated
supported by
missal without
ings”)
bars
dismissal under Rule
41(a)(l)(i)
(and,
trial court
if
change
If such a
court)
necessary,
this
block the
desirable,
rule
41(a)(l)(i)
is
should
theory
the trial
dismissal on the
that
court,
provide. This
be amended so to
how-
had a chance to rule on the Rule
court had
ever,
task
will not take
itself
motion,
12(b)(6)
granted
it should have
it.
construing
overtly (by
either
the rule to
agreed
If
court
the defend-
the trial
with
motion,
12(b)(6)
such,
include
a Rule
ant,
plaintiff’s voluntary
could block the
it
among
plaintiff’s right
the limitations on
whether,
and then consider
not-
dismiss),6
covertly by importing
12(b)(6)
withstanding
meritorious
jurisdiction.
into this
rule
motion,
exercise
it should
its discretion
Affirmed.
Super.Ct.Civ.R.
under
allow dismissal
disagreed
with
If the trial
defendant,
permit
it would
the dismissal
KELLY,
Judge, dissenting:
Associate
ground
the Rule
mo-
division,
As a
of this
I
member
adhere
tion,
precluded its de-
which the dismissal
reasoned,
(overtly)
original,
majority
ciding,
lacked
would have
merit
Bernay
opinion
in this case.
Beyond
incongruities,
these
it
event.
I
judicial contrary resources and to Rule implicitly
41(a)(lXi), allows voluntarily a suit notwith-
tiff to dismiss
standing of a Rule mo- placing gloss News TV Publish- as itself “an unwarranted In Tele-Views News Co. S.R.B. Moore’s, rule,” 41.02[3], (E.D.Pa.1961), ing 28 F.R.D. n.10, Wright Harvey gloss rejected and Miller have stat- while presents powerful id., reargument “a ed Tele-Views News but on held that argument it seems better addressed to the was the a Rule dismiss —but Advisory summary judgment, Rules.” equivalent on Civil Committee of a n.30. & A. or not the defendant had whether 1175-76; Freight Thorp, supra pleadings.” See also Pilot See id. at Carriers, Inc., supra at 916-17. Moore has characterized Tele-Views