OpenJurist

36 F3d 1089 De Fontanez v. Jefferson Pilot Life Insurance Company

36 F.3d 1089

Marta Velez Vda DE FONTANEZ, Plaintiff, Appellant,
v.
JEFFERSON PILOT LIFE INSURANCE COMPANY, Defendant, Appellee.

No. 93-2268

United States Court of Appeals,
First Circuit.

August 15, 1994.

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Raymond L. Acosta, U.S. District Judge ]

Jose L. Delgado Cadilla and Castro & Delgado Cadilla on brief for appellant.

Jose Hector Vivas and Vivas & Vivas on brief for appellee.

D.PUERTO RICO

VACATED AND REMANDED.

Before Torruella, Chief Judge, Selya and Cyr, Circuit Judges.

Per Curiam.

1

Plaintiff requested a voluntary dismissal without prejudice. The district court "granted" plaintiff's motion, but dismissed with prejudice and denied plaintiff's motion for reconsideration, which objected to the dismissal with prejudice. Plaintiff has appealed from those orders.

2

While neither the plaintiff nor the district court referred to any particular rule, we conclude that the dismissal plaintiff requested, and the court entered, was pursuant to Fed. R. Civ. P. 41(a)(2) (voluntary dismissal by order of court), as there is no basis in the record before us for an involuntary dismissal under Fed. R. Civ. P. 41(b). We conclude that the court abused its discretion in dismissing with prejudice without first giving plaintiff the opportunity to withdraw her request for voluntary dismissal. In this regard, we agree generally with the discussions in Gravatt v. Columbia University, 845 F.2d 54, 55-56 (2d Cir. 1988), and Andes v. Versant Corp., 788 F.2d 1033, 1037 (4th Cir. 1986), that if a plaintiff's motion to dismiss without prejudice is to be denied, the plaintiff ordinarily should be given the opportunity to allow the case to proceed on the merits, rather than being subjected to a dismissal with prejudice.

3

Plaintiff asks that we direct the district court to dismiss without prejudice. We will not do so because on the present record we can not say that plaintiff was entitled as a matter of law to an unconditional dismissal without prejudice.

4

We summarily vacate the order of dismissal and remand for further proceedings consistent with this opinion. Loc. R. 27.1.

5

Vacated and remanded.