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.
fedcivilprocedure 