UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

E.K. WADE,

Plaintiff,

 v.

HENRY J. KERNER,

Defendant.

Case No. 21-cv-2396 (GMH)

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Henry J. Kerner’s motion to dismiss the complaint filed by 

Plaintiff E.K. Wade (ECF No. 25) and Plaintiff’s “Motion To Dismiss Complaint for Damages 

Without Prejudice” (ECF No. 26). The Court will grant Plaintiff’s motion and, as a result, denies 

Defendant’s motion as moot.

This case generally revolves around Plaintiff’s allegation that Defendant and the United 

States Office of Special Counsel (“OSC”) failed to adequately investigate whistleblower claims 

that Plaintiff filed concerning his treatment as an employee in a Department of Labor field office 

in California. His original complaint, filed on September 6, 2021, was 133 pages long and 

challenging to decipher. ECF No. 1. Liberally construed, the original complaint brought 

negligence, negligent infliction of emotional distress, and lost wages claims against Defendant, the 

head of the OSC, for the OSC’s failure to investigate his whistleblower complaints against, among 

other persons and entities, numerous Department of Labor officials. Id. Plaintiff also appeared to 

assert First and Fifth Amendment Bivens claims against Defendant. Id. Plaintiff then attempted 

to amend his complaint several times. See ECF Nos. 5, 7, 14, 15, 18. The Court held a hearing 

on December 23, 2021, to address which of Plaintiff’s numerous complaints would be deemed the 
2

operative pleading document. See Minute Entry (Dec. 23, 2021). The parties agreed that Plaintiff 

would be permitted to file one more complaint—a sixth amended complaint—to which the 

Defendant would respond. Id. Consistent with that agreement, Plaintiff filed a Sixth Amended 

Complaint on December 30, 2021. ECF No. 23. The document stretches some 160 pages and, 

again, is difficult to interpret, but appears to contain First and Fifth Amendment Bivens claims and 

seeks damages. Id. 

Defendant subsequently moved to dismiss the Sixth Amended Complaint for lack of 

subject matter jurisdiction, improper venue, and failure to state a claim upon which relief could be 

granted. ECF No. 25. Plaintiff then moved to voluntarily dismiss his claims without prejudice. 

ECF No. 26. The Court will construe Plaintiff’s motion as a motion to voluntarily dismiss pursuant 

to Fed. R. Civ. P. 41(a)(1)(A)(i). As explained, the Court grants Plaintiff’s motion and therefore 

denies Defendant’s motion as moot.

Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure allows a plaintiff to voluntarily 

dismiss an action without a court order “by filing a notice of dismissal before the opposing party 

serves either an answer or a motion for summary judgment.” See Fed. R. Civ. P. 41(a)(1)(A)(i). 

Rule 41(a)(1) provides a “simple, self-executing mechanism,” whereby “the plaintiff files a notice 

of dismissal[;] . . . the dismissal takes effect automatically[; and] the trial judge has no role to play 

at all.” Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987). “The dismissal is without 

prejudice, unless the notice states otherwise.” Norris v. D.C. Gov’t, No. CIV.A 05-1122, 2008 

WL 7994986, at *5 (D.D.C. Aug. 1, 2008), report and recommendation adopted sub nom. Norris

v. Univ. of D.C. 05-01122, 2008 WL 7994985 (D.D.C. Sept. 12, 2008). 
3

Here, Defendant has not filed an answer to Plaintiff's complaint or a motion for summary 

judgment. So, the action must be dismissed.

1

 See, e.g., Annapolis Citizens Class Overcharged for

Water-Sewer, by Loudon Operations, LLC v. Stantec, Inc., No. CV 20-2603, 2021 WL 75766, at 

*4 (D.D.C. Jan. 8, 2021) (“Plaintiff has filed a notice of voluntary dismissal without prejudice. 

This action must be dismissed without prejudice because defendants have not yet answered 

plaintiff's complaint or filed a motion for summary judgment.”); Miniter v. Sun Myung Moon, 736 

F. Supp. 2d 41, 45 n.7 (D.D.C. 2010) (“In the present case, none of the defendants the plaintiff 

purports to dismiss has filed an answer or motion for summary judgment. Therefore, the plaintiff 

properly dismissed his claims against these defendants pursuant to Rule 41(a)(1)(A)(i).”); Little v.

Trott & Trott, P.C., No. CIV.A. 09-1882, 2009 WL 4827441, at *1 (D.D.C. Dec. 14, 2009)

(dismissing case where plaintiff filed motion to dismiss and “none of the [d]efendants have filed 

either an answer or a motion for summary judgment”).

The fact that Defendant has filed a motion to dismiss Plaintiff’s complaint under Fed. R. 

Civ. P. 12(b)(6) does not change the calculus. “[C]ourts have found that the filing of a motion to 

dismiss for failure to state a claim does not affect a plaintiff’s right to voluntarily dismiss his case.” 

West v. Am. Fresh Foods, L.P., No. 7:10-91, 2011 WL 63563, at *1 (M.D. Ga. Jan. 4, 2011); see 

also Aamot v. Kassel, 1 F.3d 441, 444 (6th Cir. 1993) (affirming district court dismissal of action 

when the plaintiff filed her dismissal after the defendant filed a Rule 12(b)(6) motion to dismiss);

Kilpatrick v. Texas & P.R. Co., 166 F.2d 788, 792 (2d Cir. 1948) (explaining that filing a motion 

to dismiss for lack of personal jurisdiction before the plaintiff filed notice of dismissal did not 

preclude the plaintiff from voluntarily dismissing the case); Brown v. T–Ink, LLC., 2007 WL 

1 Because Plaintiff has styled his submission as a “motion,” the Court enters this Memorandum Opinion and Order 

granting it although that is technically unnecessary because, as noted, the dismissal is “self-executing.” Randall, 820 

F.2d at 1320.
4

4098207, at * 3 (E.D. Mich. Nov. 16, 2007) (“It is well-established that a plaintiff’s right to a 

voluntary dismissal is not extinguished by the filing of a motion to dismiss under Fed. R. Civ. P. 

12(b), subject to the exception for Rule 12(b)(6) motions converted to motions for summary 

judgment.” (citation and quotations omitted)); Seippel v. Jenkens & Gilchrist, P.C., 2004 WL 

2809205, at * 1 (S.D.N.Y. Dec. 7, 2004) (“The filing of a motion to dismiss pursuant to Rule 

12(b)(6) does not ordinarily affect the plaintiff’s right to a Rule 41(a)(1) dismissal.”).

Further, given Plaintiff’s dismissal of his own complaint, Defendant’s bid to dismiss the 

same is now moot. See, e.g., Bush v. Semyenova, 255 F. Supp. 3d 235, 238 (D.D.C. 2017) (finding 

that grant of motion to dismiss under Fed. R. Civ. P 41 (a)(1)(A)(i) mooted defendant’s motion to 

dismiss); Little, 2009 WL 4827441, at *1 (same). 

Thus, it is hereby

ORDERED that Plaintiff’s “Motion To Dismiss Complaint for Damages Without 

Prejudice” (ECF No. 26) is GRANTED. It is further

ORDERED that Defendant’s motion to dismiss the Sixth Amended Complaint (ECF No. 

25) is DENIED as MOOT. 

The Clerk shall close this case.

SO ORDERED.

Date: March 15, 2022 ____________________________

G. Michael Harvey

United States Magistrate Judge