“IT AIN’T OVER TILL IT’S OVER!” ; RULE 41(a)(1) VOLUNTARY DISMISSALS: PITFALLS, TRAPS, & PRACTICE TIPS

“IT AIN’T OVER TILL IT’S OVER!”[i]; RULE 41(a)(1) VOLUNTARY DISMISSALS: PITFALLS,  TRAPS, & PRACTICE TIPS

(This article originally was published in SideBar, a publication of the Litigation Section of the Federal Bar Association, in Fall 2018.)

By: Ira Cohen, Esq., B.A., J.D., LL. M.

Dated: Miami, FL, July 30, 2018

         Of late, the woody walls, and hallowed halls, of the U.S. District Courts look more like marble mausoleums. In this new age of jurisprudence by electronic correspondence, many, indeed most, cases are laid to their final resting places long before they ever reach trial.

Cases have always been disposed of (“terminated,” in the parlance of court administrators) before trial in the federal system. Were they not, doubtless, the system would become hopelessly mired in the muck of litigation, and the wheels of justice would slip and slosh as they slowed down to a muddied halt.

The courts and public policy favor ending cases by settlements, whether out-of-court, informal, or by virtue of mediation. Still others are destined to die on the chopping block of pretrial procedural motions to dismiss, motions for judgment on the pleadings, motions for summary judgment, etc.

Despite this impressive array of cutting implements found in the case-terminating toolbox, it would appear that the one way that civil cases are NOT frequently disposed of is by trial. In a persistent, and disturbing, trend, a very low number of federal civil cases are terminated at or by trial. Actually, the cold, hard statistics are downright alarming.

To illustrate, with the most up-to-date information available, for the 12 month period ending March 11, 2018, the district courts terminated a total of 286,585 civil cases. No court action was taken on 51,930 cases; in total, court action was taken on 234,655 cases. Of those cases, 202,397 were terminated before trial; another 29,745 were terminated during or after pretrial. Most notably, only 2,513 cases went to trial, with 1,706 jury trials and 807 bench trials. In the final analysis, the total percentage of civil cases that did reach trial was less than 1 percent (i.e., 0.9%).[ii]

         During the course of federal litigation, it sometimes comes to pass that, through necessity or expedience, plaintiff is determined to voluntarily dismiss an action. A settlement may have been reached by the parties. Alternatively, the plaintiff may have other, valid reasons for pulling the plug on the lawsuit or -- less admirably-- may be engaging in that frowned upon lawyerly past-time known as forum-shopping.

         The pertinent procedural rule involved is Rule 41(a), Fed. R. Civ. P., which provides, in haec verba, as follows:

Rule 41. Dismissal of Actions

(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:

(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

Thus, a plaintiff may dismiss an action voluntarily without a court order in two circumstances, to wit: by filing a notice of dismissal before the opposing party serves an answer or motion for summary judgment, Fed. R. Civ. P. 41(a)(1)(A)(i); or at any time during the litigation by filing a stipulation of dismissal signed by all parties who have appeared, Fed. R. Civ. P. 41(a)(1)(A)(ii).[iii]

The distinctions Rule 41(a)(1) draws between notices and stipulations essentially are based on the stage of litigation during which they may be filed. Notably, the Rule make no distinction regarding their effect on the litigation. See Fed. R. Civ. P. 41(a)(1)(B) (discussing the effect of a “notice or stipulation”).

Whatever the animus, the plaintiff can, pursuant to Rule 41(a), Fed. R. Civ. P., play the dismissal card so long as its filing is properly timed by counsel. The question next arises as to whether the mere filing of the Notice of Dismissal, without more, effectively, and definitively, ends the game of litigation? To put it more bluntly, when is the case really over?

In that vein, both scholars and courts alike trumpet the general proposition that Rule 41(a) is self-executing and automatic. The court, in theory, loses jurisdiction over the case upon the event of filing. Yet, as we all know, many courts continue to issue Orders of one stripe or another in the wake of the Rule 41 Dismissal Notice filing. Are such post-Rule 41 Notice Orders by the Courts valid? Are they necessary? Can one reanimate a corpse case? 

Upon review of a Rule 41(a) Notice of Dismissal, many courts routinely issue one or two more orders. Some courts issue an Order of Dismissal which, in turn, is based on the Rule 41 Notice. Most courts will issue an Order denying all pending motions as moot, and closing the case. No doubt, there are behind-the-scenes bureaucratic forces and statistical requirements from the Administrative Office in Washington, D.C. at work there. Moreover, a court certainly has the inherent power to control its own docket. Whether it needs to issue any such post-Rule 41 Notice-Orders, vel non, is a horse of a different color.

In the author’s view, in practice, for most times and purposes, the answer is that it matters not. While these queries may pose interesting legal fodder for the Ivory Tower academics and their student charges to ponder, for the seasoned litigator, there should be no real concern unless, of course, a court has issued an order which changes the status of the case, purports to dismiss the case with prejudice (contrary to plaintiff’s wishes), grants attorneys’ fees or some form of relief to a party, or has attempted to retain jurisdiction impermissibly.      

On initial inspection, the Rule 41(a) landscape may seem simple and tranquil. In reality, it is fraught with stumbling stones, water hazards, pitfalls, and sand-traps. In order to render the legal terrain more navigable, I offer the following Baker’s Dozen of Rule 41(a) practice tips.

1.      The Rule 41(a) Notice of Dismissal must dismiss the entire action.

         Rule 41(a) was designed, and operates, to dismiss cases in their entirety. It is graven in stone that this procedural tool is not intended to be employed to dismiss discreet claims or counts in a civil action.[iv] 

         The rule’s own text strongly suggests that this is an “all or nothing” proposition. As for the courts’ viewpoint, for example, the Eleventh Circuit Court of Appeals, in Perry v. Schumacher Group of Louisiana, 891 F.3d 954, 958 (11th Cir. June 4, 2018), makes it crystal clear that Rule 41(a) is not to be utilized for disposing of anything but the entire action.

2.      The Rule 41(a) Notice of Dismissal is “without prejudice” unless it expressly states otherwise.                                                                            

As the Rule unmistakably states: “Unless the notice or stipulation states otherwise, the dismissal is without prejudice.” Fed. R. Civ. P. 41(a)(1)(B). That basic fact and principle may not be changed or modified by either the opponent or the court.

3.      The Rule 41(a) Notice of Dismissal may not be conditional.

In order for a Rule 41 Notice to enjoy vitality and efficacy, it must be unconditional.[v] Few, if any, exceptions or flexibility in this principle have been observed in practice.

To illustrate, where the Notice requires more than the Clerks’ ministerial act of closing the file, the notice is deemed to be conditional.[vi] To provide another concrete example, in situations wherein a notice states that there is a right for the plaintiff to reinstate the claims within 45 days, that Notice is viewed as conditional.  

         In some instances, a court will cut some slack for a litigant which has filed a conditional Rule 41 Notice, construing same as a motion to dismiss under Rule 41(a)(2), and provide notice to the filer of such contemplated treatment, barring the filing of an unconditional Rule 41(a) Notice within a prescribed period of time.[vii]

4.      The Rule 41(a) Notice of Dismissal is automatic.

         Rule 41(a) allows the Plaintiff to set in gear the legal machinery by which the case is simply and cleanly disposed of. Indeed, it obviates the need for any judicial intercession at all. "Rule 41(a)(1)(i) ... provides a simple, self-executing mechanism whereby a case may be dismissed in certain circumstances without motion, argument, or judicial order.... [T]he dismissal takes effect automatically: the trial judge has no role to play at all."[viii] In that manner, the case dies a relatively quiet death, on a markedly anti-climactic note.

         Some courts, in discussing the automatic nature of the Rule 41(a)(1)(A) dismissal’s automatic feature, have contrasted the procedure under Rule 41(a)(1)(A)(ii) relating to voluntary dismissal by means of a stipulation. For example, the former Fifth Circuit Court of Appeals indirectly indicated that a Rule 41(a)(1)(A)(ii) stipulation may dismiss the case automatically.[ix] Inasmuch as the parties are at liberty to stipulate to end the lawsuit at any time by way of stipulation (e.g., in the case of a settlement), the better approach is to treat Rule 41(a)(1)(A)(ii) as likewise dismissing a case automatically. In short, the answer is that the dismissal by stipulation also runs on automatic pilot.

5.      The Rule 41(a) Notice of Dismissal is self-executing.

The Rule 41 dismissal Notice is considered by the courts to be self-executing. In other words, it takes effect the moment it is filed with the Clerk of Court and no judicial imprimatur is needed.[x]

It is not climbing out on a ledge to suggest that the unadorned language of Rule 41(a)(1)(A)(ii) requires that a stipulation filed pursuant to that subsection is self-executing and dismisses the case upon its becoming effective. Consequently, the vast majority of the courts have ruled, in the context of both published and unpublished opinions, that a Stipulation filed under Rule 41(a)(1)(A)(ii) is self-executing and dismisses the case upon filing.[xi]

         “[A] voluntary stipulation of dismissal under Rule 41(a)(1)(A)(ii) is effective immediately, [so] any action by the district court after the filing of such a stipulation can have no force or effect because the matter has already been dismissed . . . .”[xii]

6.      The Rule 41(a) Notice of Dismissal is effective immediately and closes the case.                                                                                              

As one may correctly surmise, pursuant to Rule 41(a)(1)(i), a plaintiff has an absolute right to dismiss without prejudice and no action is required on the part of the court. Ordinarily, the filing of a Rule 41(a)(1)(A)(i) Notice closes the case.[xiii] As to the timing of the Notice’s effectiveness, the triggering event is the filing.[xiv]

  As sagely observed by the Tenth Circuit Court of Appeals, in Janssen v. Harris:

“The [filing of a Rule 41(a)(1)(i) 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 no role to play. This is a matter of right running to the plaintiff and may not be extinguished or circumscribed by adversary 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. The effect of the filing of a notice of dismissal pursuant to Rule 41(a)(1)(i) is to leave the parties as though no action had been brought. Once the notice of dismissal has been filed, the district court loses jurisdiction over the dismissed claims and may not address the merits of such claims or issue further orders pertaining to them.”[xv]

7.   The Rule 41(a) Notice of Dismissal does not require judicial approval or any order of the court.                                                               

It is well-settled that the filing of a notice of dismissal pursuant to Rule 41(a)(1)(i) does not require an order of the court.[xvi]  Matthews v. Gaither, 902 F.2d 877, 880 (11th Cir.1990). The court has no discretion to deny it and "[t]he dismissal is effective immediately upon the filing of a written notice of dismissal, and no subsequent court order is required."[xvii] 

Consequently, court orders are quite unnecessary for any dismissals under Rule 41 (a)(1)(A)(i). "Other than to determine... whether an answer or a motion for summary judgment has in fact been filed prior to the filing of a notice of dismissal, a court has no function under Rule 41(a)(1)(i)." See also 8 Moore's Federal Practice ? 41.33[6][e], at 41-84 (3d ed. 1999) ("Once a notice of dismissal without prejudice is filed, the court loses jurisdiction over the case, and may not address the merits of [the] action or issue further orders.").[xviii]

The same principle applies to voluntary dismissal by stipulation; that is to say, the dismissal is automatic and there is no requirement of judicial approval.[xix] Indeed, the district court has “nothing further to do when a stipulation of dismissal without prejudice is filed.”[xx] In fact, one lower court was called on the carpet when it “Ordered” a stipulated dismissal. The Eighth Circuit noted that Rule 41(a)(1) "contains no exceptions that call for the exercise of judicial discretion by any court" and invalidated the court's entry of a "So Ordered" notation on the parties' Rule 41(a)(1)(ii) stipulated dismissal.[xxi] 

8.      The Rule 41(a) Notice of Dismissal effectively divests the court of jurisdiction.                                                                                            

The court’s task, upon then filing of a notice of dismissal, is severely limited. "Other than to determine... whether an answer or a motion for summary judgment has in fact been filed prior to the filing of a notice of dismissal, a court has no function under Rule 41(a)(1)(i)."[xxii]

A Rule 41(a)(1)(i) dismissal "strips a court of jurisdiction" in the sense that it "terminates the case all by itself. There is nothing left to adjudicate."[xxiii] Once the plaintiff has dismissed the action under the rule, the court loses all jurisdiction over the action. 

As to cases involving stipulations, once again, the same principle is applied. As the Second Circuit Court of Appeals noted: “Generally . . . a plaintiff’s filing in the district court of a stipulation of dismissal signed by all parties pursuant to Rule 41(a)(1)(ii) divests the court of its jurisdiction over a case, irrespective of whether the district court approves the stipulation.”[xxiv]

9.      After the filing of the Rule 41(a) Dismissal Notice, the court may not address the merits of the case.                                                             

         The voluntary dismissal of a case strips the court of its jurisdiction. Once the Rule 41(a) Notice has been electronically filed with the Clerk’s Office, the District Court has lost its legal hold over the matter and, moreover, cannot enter any further orders relating to the claims of the case.[xxv]

         As a result, the courts have reasoned that any action by the district court after a voluntary dismissal is “superfluous.”[xxvi] Similarly, in those cases involving Rule 41 Stipulations, once a stipulation is filed pursuant to Rule 41(a)(1)(A)(ii), all action on the merits of the case is terminated.[xxvii]

10.    After the filing of the Rule 41(a) Dismissal Notice, the court may not retain jurisdiction by further Order.                                                  

Ordinarily, the filing of a Rule 41(a)(1)(A) Notice closes the case.[xxviii] Furthermore, the trial court thereupon loses jurisdiction and cannot enter any further orders relating to the claims of the case.[xxix]

A court cannot alter the Notice. More specifically, it cannot retain jurisdiction over the cause by judicial fiat imposed after the filing of the Rule 41 Notice. Once the case is dismissed and jurisdiction has not been retained, the district court does not have any jurisdiction to rule on the merits of that decision. “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”[xxx]

11.    Cave statutum de limitibus; beware the statute of limitations.

         There are marked differences between federal and state re-filing deadlines. The attorney must be cognizant of the chronological imperatives of each case.

 Under Rule 41 of the Federal Rules of Civil Procedure, a plaintiff may voluntarily dismiss its claim “without prejudice” prior to service by the defendant of an answer or motion for summary judgment, whichever occurs ?rst. This generally means that the plaintiff can dismiss the claim and, yet, retain the ability to refile the same claim within the statute of limitations. 

The prudent practitioner, however, must exercise extreme caution when taking a voluntary dismissal. Albeit a plaintiff can re?le a claim after voluntarily dismissing it without prejudice, attorneys need to be cognizant that, under the federal rules, the statute of limitations continues to run and could impose a bar on the claim.

One merciless trap for the unwary is that Rule 41 does not allow for the one year grace period to re?le outside the statutes of limitation. Under the Federal Rules, if dismissal is taken outside the statutes of limitation, the case is over. Furthermore, under the Federal Rule, even if the statute of limitations has not expired when dismissal is taken, attorneys should keep in mind that any re?ling must be accomplished within the limitations period, not within one-year of the dismissal.[xxxi]

Some states have enacted special laws (“savings statutes”) which spare plaintiffs’ lawyers from the bottomless abyss of malpractice. By way of illustration, at first blush, North Carolina Rule of Civil Procedure 41 appears similar to the federal rule. However, under the North Carolina variant, plaintiff may re?le the claim within one year of the voluntary dismissal, even if the second action would otherwise be barred by the statute of limitations; that is to say, the one-year provision extends the period for re?ling. 

The moral of this part of the story is that one needs a trustworthy calendaring system   One can use Outlook? or some other electronic format, but, dinosaur that I am, I tend to I favor being supported by both “belt and suspenders.” As I look back across the span of time, my paper desk calendar has not failed me in 35 years.

12.    Attorney’s Fees Awards and the “Double Dismissal” Rule.

Rule 41(d) applies where a plaintiff voluntarily dismisses a case against a defendant in one jurisdiction and, subsequently, re-files that case or a similar case in another jurisdiction. In such situations, the rule enables the defendant to recover “the costs” associated with defending the previously dismissed action. To be sure, the rule is designed to discourage forum-shopping and to remunerate defendants for expenses incurred in defending the same case twice.

Rule 41(d), Fed. R. Civ. P., provides as follows:

(d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:

(1) may order the plaintiff to pay all or part of the costs of that previous action; and

(2) may stay the proceedings until the plaintiff has complied.

         The question next arises as to the meaning of the word “costs,” i.e., whether the hapless defendant can recover its attorneys’ fees as part of its “costs”? Legal research has disclosed, as is so often the case, that the various circuits have split on that question into at least three separate and distinct camps.

         This judicial trifurcation may fairly be summarized as follows. First, there are some appellate courts who have held that such awards are always allowable.[xxxii] Second, espousing the polar alternative - and eschewing any departure from the “American Rule”  -- absent express Congressional intent and language -- other circuits have concluded that attorneys’ fees under Rule 41(d) should never be awarded.[xxxiii] Third, a number of courts have taken the middle ground, a limited rights approach couched on the rationale that such attorneys’ fees awards should be allowed when the substantive statute under which the lawsuit was filed defines costs to include lawyers’ fees.[xxxiv]

         The lesson, or take-away, here is quite simple. Where possible and proper, the lawyer for an erstwhile plaintiff contemplating the re-filing of an action in one of the liberal jurisdictions on this issue, ought to afford due consideration to the issue of being stung by the opponent for attorneys’ fees for the prior action and changing, if practicable, the re-filing forum. If no change is possible, then, an appropriate costs-benefits analysis ought to be conducted prior to re-filing. Otherwise, rather than the second time being a charm, it may well turn into a curse.

One must also be aware of the so-called “Double Dismissal” Rule. In this game, two (2) strikes and the plaintiff can be called “out”…of court.

         “[T]he effect of a Rule 41(a)(1) dismissal is to put the plaintiff in a legal position as if he had never brought the first suit. The plaintiff suffers no impairment beyond his fee for filing.”[xxxv] A voluntary dismissal without a court order is presumed to be without prejudice unless the notice of dismissal states otherwise. Rule 41(a)(1)(B), Fed. R. Civ. P.

In the event, however, the “the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.”[xxxvi] Thus, if plaintiff brings a third action, it will be tossed out based upon the second Rule 41(a) dismissal.

         This is known as Rule 41’s “Double Dismissal Rule” to the effect that a notice of voluntary dismissal operates as an adjudication on the merits when it is filed by a plaintiff who has already dismissed the same claim in another court. It ought to be mentioned that the rule does not apply where stipulations, motions, or orders are involved.[xxxvii]

13.    A Rule 41(a) Dismissal Notice may be proper to file even in light of an existing Bankruptcy Stay under Section 362(a)                              

         There are few things in legal practice that give rise to more grey hairs than the thought of running afoul of a federal court order or a Rule, let alone the serious mistake of violating the automatic Section 362(a) Bankruptcy stay. See Title 11, Section 362(a).[xxxviii]  In most litigators’ minds, the latter transgression may fairly be likened to jumping off the stalled litigation train onto the “third rail” of the judicial process.        

         Notwithstanding our instinctive (and, generally, well-founded) fear of the automatic stay, it would appear that the proper use and application of a Rule 41 voluntary dismissal can switch the tracks and completely derail a pending, but stayed, litigation.

         In that regard, it appears that the courts have favorably received Rule 41 dismissal notices, despite the existence of a previously issued auto-stay under 362(a) of the Bankruptcy Reform Act. A reading of the pertinent case law suggests that sound reasoning and strong public policy has trained the courts to approach the problem in a very pragmatic fashion.  

         In any case, the central question is whether the voluntary dismissal is not inconsistent with the terms of the stay.[xxxix] Nor does the § 362(a) stay “preclude another court from dismissing a case on its docket or ... affect the handling of a case in a manner not inconsistent with the purpose of the automatic stay.”[xl]

Parenthetically, it should be noted that, in some instances, the courts have treated the Rule 41 dismissal notice as a motion to lift the stay and for the court to issue an Order for a voluntary dismissal.[xli] The bottom line seems to be that if the debtor and its financial situation, is not prejudiced by and, indeed, is helped by the dismissal, no problem is presented.

CONCLUSION

         It has been said that Rule 41 was originally derived from an old common law practice known as retraxit. Black’s Law Dictionary defines “retraxit” as follows:

“Lat. He has withdrawn. The open, public, and voluntary renunciation by a plaintiff, in open court, of his suit or cause of action…U.S. v. Parker, 7 S. Ct. 454, 120 U.S. 89, 30 L. Ed. 601;…”[xlii]

In modern practice, plaintiff need not wait for the time and tribulations of trial. In fact, as I have stated, the statistics mentioned hereinabove reflect that the chance of reaching trial are slim to none.

In stark contrast, Rule 41 provides a convenient, electronic method, like pushing the buttons on a cleaning machine, by which the case is quickly and efficiently washed away and rinsed from the judicial system. One does need to take care, of course, that the right buttons are pushed, at just the right time, and that the door is properly shut and watertight, so as to prevent the client’s suit from being ruined.  

[i] A classic “Yogi-ism,” attributed to legendary baseball coach, manager, and N.Y. Yankee catcher, Yogi Berra, during the 1973 National League pennant race.

[ii] U.S. Courts Caseload Statistics Data Tables, U.S. District Courts- Civil Cases Terminated by Nature of Suit and Action Taken During the 12-Month Period Ending March 31, 2018, retrieved from www.uscourts.gov/statistics/caseload-statistics-data-tables, on July 30, 2018.

[iii] See, generally, Bradley Scott Shannon, Dismissing Federal Rule of Civil Procedure 41, 52 University of Louisville Law Review 265 et seq. (2014).

[iv]  See, e.g., Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004)(with the court observing that this may be accomplished by amendment under Rule 15, Fed. R. Civ. P.).

[v] See Hyde Constr Co. v. Koehring Co., 388 F.2d 501, 507 (10th Cir. 1968);

See also Amore v. Accor N. Am., Inc., 529 Supp. 2d 85, 91 (D.D.C. 2008).

[vi] Blue Cross & Blue Shield of Mo. v. Nooney Krombach Co., 170 F.R.D. 467, 471 (E.D. Mo. 1997).

[vii] See, e.g., Anna Males v. Nationwide Recovery Systems, Inc., Case No. 10-1071-CM,

D.C., D. Kan., May 5, 2010 (per Muguia, D.J.)

[viii] Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987).

[ix] See, e.g., United States v. City of Miami, 614 F.2d 1322, 1330 (5th Cir. 1980).

[x] See Marex Titanic, Inc. v. The Wrecked & Abandoned Vessel, 2 F.3d 544, 546 (4th Cir.1993).

[xi] De Leon v. Marcos, 659 F.3d 1276, 1284 (10th Cir. 2011) (characterizing a Rule 41(a)(1)(A)(ii) dismissal as self-executing); see also Marino v. Pioneer Edsel Sales, Inc., 349 F.3d 746, 752 n.1 (4th Cir. 2003) (noting that dismissals by stipulation pursuant to Rule 41(a)(1)(ii) are not effectuated by court order).

[xii] See also Small BizPros, Inc., 618 F.3d 458, 463 (5th Cir. 2010). See also Green v. Nevers, 111 F.3d 1295, 1301 (6th Cir. 1997) (noting that a “properly stipulated dismissal under Rule 41(a)(1)[(A)](ii) is self-executing and does not require judicial approval . . . .”). Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir. 1984) (recognizing that the entry of a stipulation under Rule 41(a)(1)(A)(ii) is effective automatically and does not require judicial approval).

[xiii] T.E. Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003).

[xiv] Matthews v. Gaither, 902 F.2d 877, 880 (11th Cir. 1990) (per curiam); see also Jenkins v. Village of Maywood, 506 F.3d 622, 624 (7th Cir. 2007).

[xv] Janssen, supra, 321 F.3d 998, at 1000.

[xvi] See Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 507 (10th Cir. 1968).

[xvii] Williams v. Ezell, 531 F.2d 1261, 1263–64 (5th Cir. 1976).

[xviii] D.C. Elecs., Inc. v. Nartron Corp., 511 F.2d 294, 298 (6th Cir.1 975).

[xix] Kabbaj v. Am. Sch. of Tangier, 445 F. App’x 541, 544 (3d Cir. 2011) (per curiam)(citing First Nat’l Bank of Toms River v. Marine City, Inc., 411 F.2d 674, 677 (3d Cir. 1969); see also In re Wolf, 842 F.2d 464, 466 (D.C. Cir. 1988) (per curiam) (“‘[C]aselaw concerning stipulated dismissals under Rule 41(a)(1)[(A)](ii) is clear that the entry of such a stipulation of dismissal is effective automatically and does not require judicial approval.’” (quoting Gardiner v. A.H. Robins Company, Inc., 747 F.2d 1180, 1189 (8th Cir. 1984).

[xx] State Treasurer of Mich. v. Barry, 168 F.3d 8, 14 (11th Cir. 1999).

[xxi] Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1190 (8th Cir. 1984).

[xxii] D.C. Elecs., Inc. v. Nartron Corp., 511 F.2d 294, 298 (6th Cir. 1975). See also 8 Moore's Federal Practice ? 41.33[6][e], at 41-84 (3d ed. 1999).

[xxiii] Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1078 (7th Cir. 1987).

[xxiv] Gambale v. Deutsche Bank AG, 377 F.3d 133, 139 (2d Cir. 2004).

[xxv] Janssen v. Harris 321 F.3d 998, 1001 (10th Cir. 2003); see also Netwig v. Ga. Pac. Corp., 375 F.3d 1009, 1011 (10th Cir. 2004).

[xxvi] SmallBizPros, Inc. v. MacDonald, 618 F.3d 458, 463 (5th Cir. 2010) (per curiam).

[xxvii] Smith v. Phillips, 881 F.2d 902, 904 (10th Cir. 1989).

[xxviii]  Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003).

[xxix] Id., at 1001. See also Netwig v. Ga. Pac. Corp., 375 F.3d 1009, 1011 (10th Cir. 2004).

[xxx] Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869).

[xxxi] See, e.g., Bamberger v. Bernholz, 96 N.C. App. 555 (1989), reversed on other grounds, 326 N.C. 589, 391 S.E. 2d 192 (1990).

[xxxii] See, e.g., Evans v. Safeway Stores, Inc., 623 F.2d 121, 122 (8th Cir. 1980)(per curiam).

[xxxiii] See, e.g., Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 874 (6th Cir. 2000).

[xxxiv] See, e.g., Andrews v. America’s Living Ctrs., LLC, 827 F. 3d 306, 310 (4th Cir. 2016)(quoting Esposito v. Piatrowski, 223 F.3d 497, 501 (7th Cir. 2000).

[xxxv] Yesh Music v. Lakewood Church, 727 F.3d 356, 359 (5th Cir. 2013) (quoting Harvey Specialty & Supply, Inc. v. Anson Flowline Equip. Inc., 434 F.3d 320, 324 (5th Cir. 2005).

[xxxvi]  Id.

[xxxvii] American Cyanamid Co. v. McGhee, 317 F.2d 295, 298 (5th Cir. 1963); see also, e.g., ASX Investment Corp. v. Newton, 183 F.3d 1265, 1268 (11th Cir. 1999); Manning v. S.C. Dep’t of Highway and Public Transp., 914 F.2d 44, 47 n.3 (4th Cir. 1990) (citing 9 C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE § 2368, at 188 (1971); Sutton Place Dev. Co. v. Abacus Mortg. Inv. Co., 826 F.2d 637, 640 (7th Cir. 1987).

[xxxviii] That Section provides, in pertinent portion:

a)Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of—

(1)

the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;…”

[xxxix] “[C]ourts retain jurisdiction ‘to determine the applicability of the stay to litigation pending before them, and to enter orders not inconsistent with the terms of the stay.’” Robert v. Bell Helicopter Textron, Inc., 2002 WL 1268030, 2 (N.D. Tex. May 31, 2002) (quoting Picco v. Global Marine Drilling Co., 900 F.2d 846, 850 (5th Cir. 1990)). 

[xl] Dennis v. A.H. Robins Co., Inc., 860 F.2d 871, 872 (8th Cir. 1988).

[xli] See, e.g., Hancock Bank v. Richard T. Miles and Vanessa T. Miles, Case 1:12-cv-00642-KD-C, U.S.D.C., S.D. Ala., S. Div. (per Dubose, J.)

[xlii] Black’s Law Dictionary 1480 (4TH ed. 1968).