ORDER
This mаtter is before the court on the parties’ stipulation of dismissal. The stipulation is approved and the case is dismissed without prejudice.
This civil rights action, seeking injunctive and declaratory relief, was brought as a class action. FRCP 41(a)(1) provides for voluntary dismissal of an action without order of court. That rule, however, also expressly subjеcts the dismissal to the class-action provisions in FRCP 23(e). Because of continuanсes requested by the parties and the filing of a numerous series of substantive motions, the court has not yet decided the question whether the suit could be maintained as a clаss action under FRCP 23. The stipulation of dismissal, therefore, comes before the cоurt at a pre-certification stage and presents the novel ■ question whether the voluntary dismissal requires the court’s approval and notice to the putative class members, as otherwise envisioned by FRCP 23(e) in the usual class-action circumstancеs.
FRCP 23, in itself, sheds little light on the pre-certification issue. Rule 23’s general purpose and its underlying policies, however, indicate that a Rule 41(a)(1) dismissal should be subject to court rеview under either subrule 23(d) or (e), even prior to certification of the class by the сourt. See Magana v. Platzer Shipyard, Inc.,
Rule 23(e) provides for court aрproval of a dismissal or compromise of a class action. Requiring Rule 23(e) approval ensures that the rule’s two basic aims are furthered: (1) protection оf the interests of the putative class members by the court; and (2) prevention of abuse characterized by collusion between the active parties, including their cоunsel. Furthermore, both subrules 23(d)(1) and 23(e) provide for notice of a dismissal, or of other оccurrences in the course of the proceeding, to be given class membеrs.
Although notice of dismissal of any class action may usually be necessary, it is not cоmpelled in every case. Bantolina v. Aloha Motors, Inc.,
In this action, plaintiffs seek injunctive and declaratory relief, not damages. The stipulation of dismissal does not appear to be the result of negotiation between the active parties to settle or compromise the civil-rights controversy, still existing between them, that is the subject matter of the lawsuit. Moreover, the stipulation expressly provides that each side will bear its own costs. The stipulаtion, therefore, does not present the court with a “settlement” in the strict or technical sense, unlike the more usual class-action cases involving voluntary
Additionally, it appears that this dismissal is well within any statute of limitations period so that the plaintiffs now before the cоurt or any putative class member may still bring suit upon the same controversy. Indeed, cоrrespondence with the court from the plaintiffs’ and defendants’ attorneys indicatеs that this case may again find its way before the court — perhaps in a slightly different posture and seeking “broader” relief.
In conclusion, the court finds that the danger of any Rule 23 abuse is improbable and that the interests of the putative members of the asserted class will not be prejudiced or otherwise adversely affected if the court approves the stipulation of dismissal and if notice is not given.
It is therefore
ORDERED
Dismissed without prejudice and without notice.