Rule 41(a)(1) of the Federal Rules of Civil Procedure provides, in relevant part:
[A]n 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 аdverse party of an answer or of a motion for summary judgment, whichever first occurs.
The question presented by this appeal is whether Rule 41(a)(1) allows a plaintiff to dismiss without a court order fewеr than all of the named defendants, or whether the Rule is limited to dismissals of the plaintiff’s entire case.
The answer to this question turns on our interpretation of the word “action” in Rule 41(a)(1), and whether it refеrs to the entire controversy against all the defendants, or to the entirety of claims against any single defendant. Other circuits are divided on the question. Compare Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc.,
We agrеe with the First, Third, Fifth, and Eighth circuits that Rule 41(a)(1) allows a plaintiff to dismiss without a court order any defendant who hаs yet to serve an answer or a motion for summary judg
Having decided this threshold legal quеstion, we now apply it to the facts of the case before us.
In this appeal, plaintiffs сhallenge the district court’s order dismissing defendant George Hong with prejudice. The dispute arosе when plaintiffs dropped Hong’s name from their fourth amended complaint. Dissatisfied with the plaintiffs’ аction, the district court entered an order which stated:
Since parties must ordinarily be dropped by motion, see Fed.R.Civ.P. 23(e) [sic], Plaintiffs are ordered to filе an appropriate motion for voluntary dismissal of these parties [i.e., all defendants named in the third amended complaint but dropped in the fourth amended complaint, including Hong].
When plaintiffs did not respond immediately to the court’s order, Hong filed a motion to dismiss with prejudice. Plaintiffs thеn filed a notice of voluntary dismissal of Hong under Rule 41(a)(1). The district court, ruling that plaintiffs’ failure to file a motion for dismissal constituted a violation of its order, granted Hong’s motion to dismiss with prejudice as a sanction for this violation.
Plaintiffs argue that the district court’s sanction was an abuse of discretion because it was based upon an invalid court order. Plaintiffs contend that the court had no authority to require them to obtain the court’s permission to dismiss Hong because Rule 41(a)(1) granted them an absolute right to dismiss Hоng without prejudice
The language of Rule 41(a)(1) is unequivocal. It permits a plaintiff to dismiss an action “without order of court.” Fed. R.Civ.P. 41(a)(1). As the court stated in American Cyanamid, Co. v. McGhee,
Th[e] [filing of notice] itself closes the file. There is nothing the defendant can do to fan the ashes of that action into life and the court has nо role to play. This is a matter of right running to the plaintiff and may not be extinguished or circumscribed by advеrsary or court. There is not even a perfunctory order of court closing the file. Its alpha and omega was the doing of the plaintiff alone. He suffers no impairment beyond his fee for filing.
Because the district court had no authority to order plaintiffs to dismiss Hong by motion,, the court may not sanction plaintiffs for failing to do so.
The judgment of the district court is VACATED and the case is REMANDED with instructions to enter an order dismissing Hong without prejudice.
Notes
. The First, Third, and Eighth circuits agree with the Fifth. See Cabrera v. Municipality of Bayamon,
Only the Second and Sixth circuits disagree. See Harvey Aluminum, supra; Philip Carеy Mfg. Co. v. Taylor,
. This view is endorsed by the principal treatises on civil procedure. See 9 C. Wright and A. Miller, Federal Practice & Procedure, Civil § 2362 at 149-150 (1971) ("The soundеr view and the weight of authority” suggest that a plaintiff may use Rule 41(a)(1) to dismiss fewer than all of the named dеfendants); 5 J. Moore, J. Lucas & J. Wicker, Moore’s Federal Practice ¶ 41.06-1, at 41-86 to 41-88 (2d ed. 1992) (The "better view” holds that Rule 41 permits dismissal “whether it is fewer than аll the defendants against whom a dismissal is sought to be taken, or fewer than all the plaintiffs who seek tо withdraw from the action.").
. A dismissal under Rule 41(a)(l)(i) is without prejudice, unless the plaintiff had already dismissed the action once before. See Fed.R.Civ.P. 41(a)(1) ("Unless otherwise stated in the notice of dismissal or stipulatiоn, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed ... an action based on or including the same claim.”).
. We have appellate jurisdiction to review the court order dismissing Hоng with prejudice because the district court directed the entry of a final judgment in favor of Hong under Rule 54(b). We reject plaintiffs’ argument that the district court abused its discretion in entering the 54(b) judgment.