UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

BURNS RENT-ALLS, INC., 

 Plaintiff, 

 v. 

MICHAEL SHARPE and AAYS RENTALL CO., INC., 

 Defendants. 

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Case No. 3:14-CV-1958 JD 

OPINION AND ORDER

Now before the Court is the Plaintiff’s motion to withdraw its notice of voluntary 

dismissal. [DE 9]. Plaintiff filed its complaint in this matter on October 15, 2014. Although 

Defendants have yet to appear, Plaintiff filed an agreed motion for entry of judgment and 

permanent injunction on November 24, 2014, indicating that the parties had reached a settlement 

and agreed to entry of judgment and a permanent injunction. [DE 7]. Shortly after filing that 

motion, however, Plaintiff also filed a notice of dismissal pursuant to Rule 41(a)(1)(A)(i) of the 

Federal Rules of Civil Procedure. Such a notice typically terminates an action regardless of the 

pendency of any dispositive motions, and deprives a court of jurisdiction to enter judgment. 

Nelson v. Napolitano, 657 F.3d 586, 588–89 (7th Cir. 2011). Thus, the Court construes the 

motion to withdraw the notice of dismissal as a Rule 60(b) motion to vacate the judgment. See 

id. (“[A] district court retains jurisdiction to consider a Rule 60(b) motion following a voluntary 

dismissal.”). 

Under Rule 60(b), a court can set aside a judgment based on “mistake, inadvertence, 

surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Given this sequence of events and 

Plaintiff’s immediate filing of the motion to withdraw the dismissal, it is clear that the notice of 
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dismissal was filed through mistake, inadvertence, or excusable neglect, as Plaintiff was clearly 

trying to effectuate the settlement agreement and did not mean to terminate this action prior to 

the Court acting on the agreed motion for entry of judgment. Therefore, the Court GRANTS the 

motion to withdraw the notice of voluntary dismissal [DE 9], and VACATES that notice [DE 8]. 

As to the pending motion for entry of agreed judgment and permanent injunction, the 

Court acknowledges that Plaintiff’s counsel has represented, both under oath and as an officer of 

the Court, that Defendants have agreed to the motion and to entry of judgment. However, the 

Defendants have not actually appeared in this action, and the Court believes that it is more 

prudent for the Defendants to file appearances prior to the Court entering judgment and a 

permanent injunction against them. The Court therefore requests that counsel for the Defendants 

enter their appearances in this matter before it will act on the motion for entry of judgment and 

permanent injunction. 

Finally, the proposed order that Plaintiff submitted on its motion for entry of judgment 

and permanent injunction includes both a permanent injunction against the Defendants and an 

order that the Plaintiff dismiss this case with prejudice. Those two elements are mutually 

exclusive—if the Plaintiff dismisses this case with prejudice, the Court has no authority to enter 

a permanent injunction, and if the Court enters judgment, the case will have concluded (and res 

judicata will have attached) and there will be nothing for Plaintiff to dismiss. The proposed order 

also indicates that the Court will retain jurisdiction for the purposes of enforcing settlement, 

despite the dismissal of the suit with prejudice. But if the parties wish to effectuate their 

settlement by dismissing the suit with prejudice (as opposed to through the judgment and 

injunction, or through a dismissal without prejudice), such a retention of jurisdiction would be 
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void. Accordingly, once the Defendants have appeared, the Court will set a status conference to 

clarify the parties’ intentions. 

 SO ORDERED. 

 ENTERED: December 8, 2014 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court