* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 19, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 06-30775

(Summary Calendar)

_____________________

CONSECO LIFE INSURANCE COMPANY, 

Plaintiff-Appellee

versus 

NANCY DAVIS JUDSON,

Defendant-Appellant.

---------------------

Appeal from the United States District Court 

for the Middle District of Louisiana 

(04-CV-155)

---------------------

Before SMITH, WIENER and OWEN, Circuit Judges. 

PER CURIAM:*

This appeal arises from an interpleader action initiated by

Conseco Life Insurance Company (“Conseco”) to determine the

rightful beneficiary of proceeds from a “key employee” life

insurance policy. Hall Davis, IV (“Davis”), the president and one

of two equal shareholders of Hall’s Mortuary, Inc. (“HMI”), had

himself designated as beneficiary of the policy even though the

corporation had paid the premiums on it. At the time the insurance

proceeds became payable, Davis and Appellant Nancy Davis Judson
2

(“Judson”), the other 50% shareholder in HMI, were already

embroiled in state court proceedings regarding the dissolution of

HMI. Both Davis and Judson were named as defendants in the

interpleader action. 

Davis answered the interpleader action and filed a cross-claim

against Judson. Judson also answered the interpleader and filed a

counterclaim against Davis and third-party claims against several

other participants in the ongoing dissolution of HMI. Most of

these additional claims did not depend on resolution of the

interpleader action. 

The state court then enjoined Judson from pursuing in federal

court any claims related to HMI’s dissolution, other than the

interpleader action. In compliance with this injunction, Judson

filed an Ex Parte Notice of Dismissal in the district court,

withdrawing a portion of her counterclaim against Davis and all of

her third-party claims. At the time she filed this notice, neither

Davis nor any of the third parties had filed responsive pleadings.

For reasons we are unable to discern, the district court

treated Judson’s Notice of Dismissal as though it were a motion to

dismiss and set it for hearing along with all remaining motions in

the interpleader action. Judson then moved to strike the Notice of

Dismissal from the docket, asserting that, because (1) no adverse

party had responded to her claims, and (2) she had not previously

dismissed any action based on or including the same claims in any

court, Rule 41 of the Federal Rules of Civil Procedure gave her the
2 Fed. R. Civ. P. 41(a)(1) (emphasis added).

3 Fed. R. Civ. P. 41(c).

3

unrestricted right to dismiss her claims without leave of the

court. The district court denied Judson’s motion and, after

resolving the interpleader action in favor of HMI, “DENIED, as

moot” Judson’s Notice of Dismissal. Understandably concerned with

the possible preclusive effect of this denial on her claims against

Davis and the other third parties, Judson filed a motion for a new

trial, but that motion was also denied. She now appeals.

Judson’s interpretation of FRCP 41 is correct. “[A]n action

may be dismissed by the plaintiff without order of the court [] by

filing a notice of dismissal at any time before service by the

adverse party of an answer or of a motion for summary judgment.”2

“The provisions of this rule apply to the dismissal of any

counterclaim, cross-claim or third-party claim.”3 In this case, it

is undisputed that no adverse party had responded to Judson’s

claims. 

The district court erred in treating Judson’s Notice of

Dismissal as a motion to dismiss and in denying it “as moot.” We,

therefore, reverse the district court and remand this action to the

district court with instructions to enter judgment recognizing that

the claims specified in Judson’s notice were properly dismissed at

the time it was filed.

REVERSED AND REMANDED with instructions.