IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

JOSEPH E. NAGY, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-1627-X-BN 

 § 

KEVIN MCGRATH and ELIANA § 

MCGRATH § 

 § 

Defendants. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Joseph E. Nagy returned to this Court pro se, see Nagy v. McGrath, 

No. 3:22-cv-1155-K-BN, 2022 WL 2251042 (N.D. Tex. June 1, 2022), rec. accepted, 

2022 WL 2237502 (N.D. Tex. June 22, 2022) (Nagy I), realleging claims based on the 

facts alleged in Nagy I but, this time, just against his ex-wife and her current husband 

under 42 U.S.C. §§ 1981 and 1985 and theories of “wrongful child support” and 

“mental anguish.” Dkt. No. 3. 

Because Nagy again moved for leave to proceed in forma pauperis (IFP), see

Dkt. No. 4, United States District Judge Brantley Starr referred Nagy’s latest lawsuit 

to the undersigned United States magistrate judge for pretrial management under 

28 U.S.C. § 636(b) and a standing order of reference. 

The Court granted Nagy leave to proceed IFP. See Dkt. No. 6. And the 

undersigned entered findings of fact and conclusions of law recommending that the 

Court issue an appropriate sanctions warning and dismiss Nagy’s lawsuit as 

malicious under 28 U.S.C. § 1915(e)(2)(B)(i) or, in the alternative, dismiss his federal 

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claims with prejudice and decline to exercise supplemental jurisdiction over the 

remaining state law claims [Dkt. No. 7] (the FCR). 

No objections were filed. And, on August 23, 2022, the Court accepted the FCR 

and entered judgment, dismissing Nagy’s lawsuit as malicious. See Dkt. Nos. 8, 9. 

The same day, Nagy’s Motion to Dismiss “due to time restraints to file 

objections” [Dkt. No. 10] was received in the mail and docketed (after the docketing 

of the order accepting the FCR and the judgment). 

On September 7, 2022, Nagy filed Plaintiff’s Motion to Vacate Judgment [Dkt. 

No. 11], moving the Court to vacate its judgment and dismiss this case without 

prejudice, consistent with his motion to dismiss. 

And the undersigned enters these findings of fact, conclusions of law, and 

recommendation that the Court should deny this motion, construed as brought under 

Federal Rule of Civil Procedure 59(e). 

Legal Standards 

Where a litigant requests that a district court reexamine a prior ruling that 

adjudicates all the claims among all the parties, such a motion “is evaluated either 

as a motion to ‘alter or amend a judgment’ under [Federal Rule of Civil Procedure] 

59(e) or as a motion for ‘relief from a final judgment, order, or proceeding’ under 

[Federal Rule of Civil Procedure] 60(b).” Demahy v. Schwarz Pharma, Inc., 702 F.3d 

177, 182 n.2 (5th Cir. 2012) (per curiam). “The rule under which the motion is 

considered is based on when the motion was filed.” Id. (citing Tex. A&M Research 

Found. v. Magna Transp., Inc., 338 F.3d 394, 400 (5th Cir. 2003)). 

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Because Nagy filed Plaintiff’s Motion to Vacate within 28 days of the Court’s 

judgment, “the motion is treated as though it was filed under Rule 59.” Id.

A Rule 59(e) motion timely filed, within 28 days of judgment, “‘suspends the 

finality of the original judgment’ for purposes of an appeal.” Banister v. Davis, 140 S. 

Ct. 1698, 1703 (2020) (quoting FCC v. League of Women Voters of Cal., 468 U.S. 364, 

373, n.10 (1984)). At this point, then, “there is no longer a final judgment to appeal 

from,” and, “[o]nly the disposition of [the Rule 59(e)] motion ‘restores th[e] finality’ of 

the original judgment, thus starting the 30-day appeal clock.” Id. (citations omitted). 

The Court’s “ruling on the Rule 59(e) motion [therefore] merges with the prior 

determination, so that the reviewing court takes up only one judgment.” Banister, 

140 S. Ct. at 1703 (citation omitted). 

Rule 59(e) “is ‘an extraordinary remedy that should be used sparingly.’” Rollins 

v. Home Depot USA, 8 F.4th 393, 396 (5th Cir. 2021) (quoting Templet v. HydroChem 

Inc., 367 F.3d 473, 479 (5th Cir. 2004)). And, while its text “does not specify the 

available grounds for obtaining such relief,” the United States Court of Appeals for 

the Fifth Circuit 

has explained that Rule 59(e) motions “are for the narrow purpose of 

correcting manifest errors of law or fact or presenting newly discovered 

evidence” – not for raising arguments “which could, and should, have 

been made before the judgment issued.” Faciane v. Sun Life Assurance 

Co. of Canada, 931 F.3d 412, 423 (5th Cir. 2019) (quotation omitted). 

[The Fifth Circuit has] further noted that Rule 59(e) allows a party to 

alter or amend a judgment when there has been an intervening change 

in the controlling law. See Schiller v. Physicians Res. Grp., Inc., 342 F.3d 

563, 567-68 (5th Cir. 2003). 

Id.; accord Demahy, 702 F.3d at 182. 

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Analysis 

Rule 41(a) provides that “the plaintiff may dismiss an action without a court 

order by filing: (i) a notice of dismissal before the opposing party serves either an 

answer or a motion for summary judgment.” FED. R. CIV. P. 41(a)(1)(A). 

“To be effective[, consistent with the text of the rule], plaintiff’s voluntary 

notice of dismissal must be filed with the court prior to defendant’s service of the 

answer.” Keach v. Monarch Life Ins. Co., 126 F.R.D. 567, 568 (D. Kan. 1989); see also 

Aero-Colours, Inc. v. Propst, 833 F.2d 51, 52 (5th Cir. 1987) (per curiam) (“We agree 

with the Seventh Circuit’s succinct statement of the intent of the rule: ‘Rule 41(a)(1) 

as it was drafted simplifies the court’s task by telling it whether a suit has reached 

the point of no return. If the defendant has served either an answer or a summary 

judgment motion it has; if the defendant has served neither, it has not. We are 

unwilling to upset the balance struck in Rule 41(a)(1) by adding some different test.’” 

(quoting Winterland Concessions Co. v. Smith, 706 F.2d 793, 795 (7th Cir. 1983))); cf. 

Marques v. Federal Reserve Bank of Chi., 286 F.3d 1014, 1017 (7th Cir. 2002) (“[O]ne 

doesn’t need a good reason, or even a sane or any reason, to dismiss a suit voluntarily. 

The right is absolute, as Rule 41(a)(1) and the cases interpreting it make clear, until, 

as the rule states, the defendant serves an answer or a motion for summary 

judgment.” (citations omitted)). 

“[A] judgment on the merits that is entered after the plaintiff has filed a proper 

Rule 41(a)(1) notice of dismissal is indeed void.” Marques, 286 F.3d at 1018 (collecting 

cases). Cf. Meinecke v. H & R Block of Hous., 66 F.3d 77, 82 (5th Cir. 1995) (per 

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curiam) (“[W]hen the parties file a stipulation of voluntary dismissal pursuant to Rule 

41(a)(1)(ii), ‘any further actions by the court [are] superfluous.’” (quoting United 

States v. Kellogg (Matter of West Texas Mktg. Corp.), 12 F.3d 497, 501 (5th Cir. 1994); 

citing Williams v. Ezell, 531 F.2d 1261, 1264 (5th Cir. 1976))). 

And, “although not every ‘void’ judgment is subject to collateral attack, only 

those where the voidness is unarguable, the refusal to vacate under [Federal Rule of 

Civil Procedure] 60(b)(4) an unarguably void judgment is an abuse of discretion.” 

Marques, 286 F.3d at 1018 (citations omitted); see also, e.g., Srivastava v. Rosenberg, 

88 F. App’x 950, 951 (7th Cir. 2004) (per curiam) (“It is well settled that ‘a judgment 

on the merits entered after a plaintiff has filed a proper rule 41(a)(1) notice of 

dismissal is indeed void.’ A refusal to vacate a void judgment in response to a 60(b)(4) 

motion is a per se abuse of discretion. The ‘supplement’ Srivastava filed after she 

moved to dismiss her case did not give the court continuing jurisdiction to enter a 

judgment against her, because anything filed with the court after she voluntarily 

dismissed her complaint was just as much a legal nullity as the court’s void judgment. 

Thus we must vacate the court’s judgment and remand to the district court with 

instructions to dismiss Srivastava’s complaint without prejudice.” (citations 

omitted)). 

Nagy moves to vacate a judgment that he argues is void considering his Rule 

41(a)(1)(A)(i) notice, an argument that may be construed as seeking to correct a 

manifest error of law under Rule 59(e). And the above authority provides a framework 

to analyze – but does not necessarily resolve – the issue presented by Nagy’s motion: 

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whether a court must vacate a judgment entered prior to but the same day that a 

plaintiff files his Rule 41(a)(1)(A)(i) notice. 

As to the filing of that notice, because Nagy is not incarcerated, the prison 

mailbox rule – or when Nagy mailed his notice (as he has not made filings in this case 

electronically) – is not consequential. Cf. Uranga v. Davis, 893 F.3d 282, 286 (5th Cir. 

2018) (“We reaffirm that the operative date of the prison mailbox rule remains the 

date the pleading is delivered to prison authorities.”). Nagy’s notice was therefore 

filed when it was received by the clerk, on August 23, 2022. See FED. R. CIV. P. 

5(d)(2)(A); see, e.g., Gilmore-Webster v. Bayou City Homebuyers, Inc., 845 F. App’x 

329, 333 (5th Cir. 2021) (per curiam) (“The district court ordered him to file that 

pleading by August 26. Gilmore-Webster postmarked it on August 26, and it reached 

the district court clerk the following day. That made it one day late.”). 

And, here, the Court need not determine which happened first on August 23 – 

the receipt of the notice (for filing) or the docketing of the judgment. Cf. Marques, 286 

F.3d at 1017. That is because Nagy does not carry his burden to show that the 

judgment dismissing this lawsuit as malicious under the IFP statute should be 

considered unarguably void under the authority set out above. 

In support of his construed Rule 59(e) motion, Nagy sets out a timeline 

explaining that the FCR was mailed to him on August 8 and received by him on 

August 13, prior to his decision to forgo objections and his mailing of the notice on 

August 19. See Dkt. No. 11 (“Plaintiff filed the Motion to Dismiss in lieu of 

objections.”). 

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Nagy therefore admits that he was served with the FCR – recommending 

dismissal on an otherwise affirmative defense of res judicata – prior to filing his 

notice. And given the unique facts of this case, the FCR should function as at least 

the equivalent of a motion for summary judgment filed by a defendant. So this case 

essentially “reached the point of no return” before Nagy’s attempted dismissal 

without prejudice. Aero-Colours, 833 F.2d at 52. 

He may not therefore argue that the dismissal with prejudice is unarguably 

void. And there is no manifest error of law to correct under Rule 59(e). 

Recommendation

The Court should deny Plaintiff Joseph E. Nagy’s Motion to Vacate Judgment 

[Dkt. No. 11], construed as brought under Federal Rule of Civil Procedure 59(e), and 

should, solely for statistical purposes, reopen and then close this case based on any 

order accepting or adopting these findings, conclusions, and recommendation. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

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to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: September 13, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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