UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) DETROIT I NTERNATIONAL BRIDGE COM P ANY, et al ., ) ) ) P laintif fs, )

) v. ) Civil Action No. 10-476 (R MC) ) GOVERN MENT OF CANAD A, et al ., ) ) Defendan ts. ) )

MEMORAN DUM OP INION Plaintiffs Detroit I nterna tional Br idge Company and the Canadian Transit Company have filed a notice of voluntary dismiss al dismiss ing all claims ag ainst the Gover nment of Canada , the Fe dera l Hig hway Administrati o n , Vi ct or Mendez, and Ray L ahood. See Notice of Dismissal [Dkt. # 52]. The Gover

nment of Canada objects to the notice and has filed a motion t o v acate plaintiff’s notice of dismiss al. See Canada ’s Mot. to Vac ate Plaintiffs’ Notice of Dismissal (“Mot.
to Vac ate” ) [Dkt. # 54]. For the re as o n s s t at ed here in and those at the hear ing on November 30, 2011, the Court will deny Canada ’s motion.

I. ANALYSIS Rule 41(a) (1)( A) allows a plaintiff to “dismiss an action without court order by filing

. . . a notice of dismiss al befor e the opposing party serve s either an answe r or a motion for summary judgme nt.” Fe d. R. Civ. P. 41(a) (1)( A). Unless the notice “states otherwise, the dismiss al is without prejudice .” Fe d. R. Civ. P. 41(a) (1)( B)

. Howeve r, “if the plaintiff previously dismiss ed any fede ralor-state -cour

t action based on or including the same cla i m , a n o tice of dismiss al operates as anadjudication on the merits.” Id. Plaintiffs filed their Rule 41(a) (1)( A) notice on November 29, 2011.

[Dkt. # 52]. Although Canada has filed a motion to dismiss , it has not answe red or moved for summary judgme nt. Canada conce des that a “woode n rea ding of the rule” would require dismiss al. Mot. to V acate at 2. Canada , howeve r, has been involved in this litigation for more than 20 months and arg ues that plaintiff’s notice – filed the day befor e oral arg ument was to be held on Canada ’s motion
to dismiss – should be vacated. See id. pp 2-3. Canada contends that it has “joined issue” with the plaintiffs and that the purposes of Rule 41 would not be serve d by allowing plaintiffs to dismiss this action volunt arily without prejudice , espec ially g iven C anada ’s s tatus as a fore ign sovereig n. See id. Canada relies on Harve y Aluminum, Inc. v. American Cyanamid Co. , 203 F.2d 105, 108 (2d Cir. 1953) to support its arg

ument that the issues have been joined and voluntary dismiss al is improper. See id. p. 2. Harve

y Aluminum , howeve r, is both fac tually distinct and has been reje cted by ever y circ uit court that has analy zed it. First, in Harve

y Aluminum , plaintiff voluntarily dismiss ed its suit afte r the district court had held an evidentiar y hear ing and denied plaintiff’s motion for a preliminary injunction. 203 F.2d at 106. The district court deter mined that plaintiff’s chanc e of succe ss on the merits was “re mote, if not completely nil.” Id. After war d, plaintiff fi l ed a n o tice dismiss ing the action without prejudice

. Id. The district court “denie d” the notice and the Second Circuit aff irmed, holding: T h e h ear ing befor e J udg e Suga rman on the plaintiff' s motion for a prelimi n ar y injunction require d sever al day s of argume nt and testimony , y ielding a rec ord of some 420 pag es. Fur

ther, the merits of the controve rsy wer e square ly raised and the district court in part based its denial of the in j u nction on its conclusion that the plaintiffs' chanc e of succe ss on the merits was small. Consequently , althoug h the

2voluntary dismiss al was attempted befor e any paper labeled ‘answe r’ or ‘motion for

summary judgment’ was filed, a literal application of Rule 41(a) 1 to the prese nt controve rsy would not be in acc ord with its essential purpose of preve nting arbitra ry dismiss als afte r an a dvance d stag e of a suit has been r eac hed. Id. at 107-08 (citations omitted). The Second Circuit further held that Rule 41 d i d n o t p er m i t dismiss al ag ainst some, but not all of the defe ndants. Id. at 108.

Unlike Harve

y Aluminum , Canada has no t been eng ag ed “in sever al day s of arg ument

an d t es t i mony .” Although it has have been involved in the suit for some time, much of that time dealt with the United States’ e ffor t to c hang e venue – an arg ument in which Canada did not assert

a position one way or another

. See Memo Op. [Dkt. #43]. Thus, it is not clea r that the issues in this

case have a lrea dy

been “ joined” like those in Harve y Aluminum. Second, Harve

y Aluminum has been reje cted by ever y circ uit that has considere d it. See American S

occe r Co., Inc. v. Score First Enterprises , 187 F.3d 1108 (9th Cir. 1999) ; Marex Titani c, Inc. v. W

reck ed and Abandoned Vessel , 2 F.3d 544 (4th Cir. 1993); Plains Growers, Inc. v. Ick es-Braun Glasshouses, I

nc. , 474 F.2d 250, 254- 55 (5th Cir. 1973). See also Marque s v. Fede ral Reserv e Bank of Chicago , 286 F.3d 1014, 1016-18 (7th Cir. 2002); Estalco Aluminum Co.

v. United States , 995 F.2d 201, 204 (F ed. Cir. 1993); Matthews v. Gaither , 902 F.2d 877, 880 (11th Cir

. 1990). I n fac t, even the Second C ircuit, while not overr uling the decision, has called Harve y Aluminum into doubt. See W akefield v. Northern Tele com, I nc. , 769 F. 109, 114 ( 2nd Cir. 1985). Thus, the “sounder view an d t h e we i g ht of judicial authority ” is to allow a plaintiff to dismiss its claims ag ainst all defe ndants or any defe ndant at any time befor e that defe ndant has filed an answe r

or motion for summary judgme nt. 9 Charles Alan Wright & Arthur R. Miller, Fede ral Practice and Procedure , § 2362 (3d ed. 2011)

.

3II. CONCLUSION There is nothing in the rec ord or the parties’ arg uments to cause the Court to ignor e the lang uag e of Rule 41 or the unmistakable weig ht of judicial authority

. Be cause Canada has not filed an answe r or a motion for summary judgme nt, plaintiffs are entitled to dismiss their claims ag ainst Canada.

A memorializing Or der a ccompa nies this Memorandum Opinion.

Date: De cembe r 1, 2011 /s/ ROSEMARY M. COL L YER United States District J udg e

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