Fifth Circuit Allows Rule 60 Motion To Vacate Voluntary Dismissal

Music v. Church, Court of Appeals, 5th Circuit 2013 – Google Scholar.

The Fifth Circuit, with one dissent, has allowed a plaintiff to vacate a Rule 41 voluntary dismissal by using a Rule 60 motion to vacate.

Rule 41(a) allows a plaintiff to dismiss a lawsuit without prejudice. Here the plaintiffs used Rule 41(a) to accomplish that objective.

Plaintiff then brought a Rule 60 motion to vacate the judgement.

The Defendant argued that a Rule 41(a) voluntary dismissal is not a judgment, so it cannot be vacated. The Fifth Circuit held that a Rule 41(a) voluntary dismissal is a judgment and that Rule 60 can be used to vacate it. In so ruling, the Fifth Circuit joined the Fourth, Sixth and Seventh Circuits.

There does not appear to be a split in the circuits.

This procedure could be useful if the case is voluntarily dismissed pursuant to a settlement and one party does not abide by the terms of the settlement.

Edward X. Clinton, Jr.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s