UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

INAAM BASHI,

CIVIL ACTION NO. 09-12108

Plaintiff,

DISTRICT JUDGE DAVID M. LAWSON

v.

MAGISTRATE JUDGE DONALD A. SCHEER

GMAC MORTGAGE CORPORATION, 

et al.,

Defendants

_________________________________/ 

REPORT AND RECOMMENDATION

I. RECOMMENDATION:

I recommend that Plaintiff’s Motion to Dismiss Without Prejudice be deemed a

voluntary dismissal without prejudice under Fed.R.Civ.P. 41(a)(1)(A)(I). I further

recommend that Defendant GMAC Mortgage LLC’s Motion to Dismiss be denied as moot.

II. REPORT:

A. Procedural History

This matter is before the magistrate judge on Order of Reference for general case

management. Plaintiff filed her original Complaint in the Oakland County Circuit Court on

May 18, 2009. The case was removed to this court by Defendant Wells Fargo Home

Mortgage, Inc. (“Wells Fargo”) on June 1, 2009. Defendant GMAC Mortgage, LLC

(“GMAC”) filed its consent to removal on June 15, 2009. Wells Fargo filed its Answer on

June 9, 2009.

GMAC filed its Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), on June 22,

2009. Plaintiff filed her Response to the Motion on July 13, 2009, and GMAC filed a Reply

2:09-cv-12108-DML-DAS Doc # 31 Filed 11/18/09 Pg 1 of 8 Pg ID 292
2

on July 27, 2009. The Motion was brought on for hearing on September 25, 2009, and

taken under advisement.

Plaintiff filed her Motion to Dismiss Without Prejudice as to her claims against GMAC

on November 5, 2009. On November 9, 2009, GMAC filed its Response and Objection.

B. Factual History

On December 23, 2005, Plaintiff closed two loans with Pathway Financial, LLC, a

non-party. The first loan was for $382,000.00 and the second was for $95,000.00. Both

loans were secured by real property located in Commerce Township, Michigan. Wells

Fargo is the loan service company for the first mortgage and GMAC is the service company

on the second. Plaintiff’s Complaint alleges that Wells Fargo and GMAC have violated her

rights under various federal and state statutes and common law. On November 12, 2009,

Plaintiff and Wells Fargo submitted a Stipulation for Dismissal of the Complaint as to Wells

Fargo, without prejudice. The Stipulation was accepted by the court, and an Order granting

the dismissal was entered.

GMAC filed a Motion to Dismiss Plaintiff’s Complaint on June 22, 2009. Plaintiff filed

a Response in Opposition to the Motion, and GMAC filed a Reply Brief. The Motion was

heard on September 25, 2009, and taken under advisement. 

On November 5, 2009, Plaintiff filed her Motion to Dismiss, without prejudice, her

claims against GMAC. GMAC filed a Response in Opposition on November 9, 2009,

asserting that Plaintiff has no right to dismiss without prejudice at this juncture, and that its

Motion to Dismiss the Complaint with Prejudice should be granted.

2:09-cv-12108-DML-DAS Doc # 31 Filed 11/18/09 Pg 2 of 8 Pg ID 293
3

 C. Applicable Law and Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides that a Complaint must be

dismissed if it fails to state a claim upon which relief may be granted. A complaint need not

contain detailed factual allegations. Nonetheless, a plaintiff’s obligation to provide the

“grounds” of his entitlement for relief, as mandated by Fed.R.Civ.P. 8(a)(2), requires more

than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do. Rather, the factual allegations must be enough to raise a right to relief above

the speculative level, on the assumption that the allegations are true. Bell Atlantic

Corporation v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). The pleading must contain

something more than a statement of facts which creates a mere suspicion of a legally

cognizable right of action. The court should proceed on the assumption that all the

allegations in the complaint are true. A well pleaded complaint may proceed even if it

appears “that a recovery is very remote and unlikely,” and Rule 12(b)(6) does not

countenance dismissal based on a judge’s disbelief of the plaintiff’s factual allegations. Id.

Fed.R.Civ.P. 41(a)(1) provides that a plaintiff may dismiss an action without a court

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

answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all

parties who have appeared. Unless the notice or stipulation states otherwise, the dismissal

is without prejudice. Fed.R.Civ.P. 41(a)(1)(B). Except as provided in Rule 41(a)(1), an

action may be dismissed at the plaintiff’s request only by court order, and on such terms

as the court considers proper.

2:09-cv-12108-DML-DAS Doc # 31 Filed 11/18/09 Pg 3 of 8 Pg ID 294
4

D. Analysis

Fed.R.Civ.P. 41(a)(1)(A) provides that a plaintiff may 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. In the case at bar, Defendant GMAC has not filed an

Answer or a Motion for Summary Judgment. Rather, Defendant filed its June 22, 2009

Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6). In that Motion, Defendant took pains

to point out that its reliance on documents not formally incorporated by reference or

attached to the Complaint did not convert its Motion to Dismiss into a Motion for Summary

Judgment. (Docket Entry #12, page 2 n.2). I am satisfied as to the accuracy of that

proposition of law. Greenberg v. Life Ins. Co. Of Va., 177 F.3d 507, 514 (6th Cir. 1999).

The Federal Rules of Civil Procedure deal separately with motions to dismiss and

motions for summary judgment. It is abundantly clear that those respective motions are

separate and distinct from one another. Rule 41(a)(1) preserves the right of a plaintiff to

dismiss his cause of action without a court order by the mere filing of a notice before the

opposing party serves either an answer or a motion for summary judgment. The Rule

makes no reference to a motion to dismiss as a bar to a plaintiff’s right of voluntary

dismissal.

The seven defenses listed in Rule 12(b), at the option of the

defendant, may be asserted in an answer or in a motion to

dismiss. If they are included in an answer, the service of the

answer terminates the plaintiff’s right to dismiss the action by

notice. However, subject to one possible qualification . . ., the

plaintiff’s right of voluntary dismissal is not terminated when

such defenses are put forward in a motion to dismiss. A

motion to dismiss is neither an answer nor, unless

accompanied by affidavits or other documents dealing with

matters outside the pleadings that are not excluded by the

district court, a motion for summary judgment; thus, unless

2:09-cv-12108-DML-DAS Doc # 31 Filed 11/18/09 Pg 4 of 8 Pg ID 295
5

formally converted into a motion for summary judgment under

Rule 56, a significant number of decisions make . . . it clear

that a motion to dismiss under Rule 12 does not terminate the

right of dismissal by notice.

Wright and Miller, Federal Practice and Procedure: Civil Third, Section 2363.

Wright and Miller cite numerous circuit court authorities in support of their

interpretation. The Second, Third, Fourth, Fifth, Seventh, Eighth and Ninth Circuits have

adopted the rule. Id., at footnote 21. While I find no Sixth Circuit case which has addressed

the issue, an unpublished district court opinion from our circuit has adopted the majority

view. See, Keefer v. Ohio Department of Job and Family Services, 2005 WL 1969707 (D.C.

Ohio). 

The commentators note a possible exception to the general rule that a plaintiff may

dismiss an action by notice before the defendant has submitted an answer. They cite

Harvey Aluminum, Inc. v. American Cyanamid Company, 203 F.2d 105 (2nd Cir.), cert.

denied, 345 U.S. 964 (1953) wherein the court denied voluntary dismissal, despite the

absence of an answer or motion for summary judgment, based upon the court’s extensive

consideration of the defendant’s efforts to have the case dismissed. Wright and Miller

observe that Harvey while reasonable, has little support, and appears contrary to the great

weight of judicial authority. 

In the case at bar, GMAC did file a Motion to Dismiss. That Motion was opposed by

Plaintiff, and a brief hearing was conducted. The consideration afforded by the undersigned

magistrate judge to GMAC’s dismissal effort is not comparable to the extensive (several

days) hearing in Harvey, which produced a record of 420 pages in which the merits of the

controversy “squarely were raised.” Thus, even if the minority rule of Harvey were to be

adopted, it would not apply to the circumstances of this action.

2:09-cv-12108-DML-DAS Doc # 31 Filed 11/18/09 Pg 5 of 8 Pg ID 296
6

GMAC asserts that it would be prejudiced by a voluntary dismissal which allowed

the possibility that Plaintiff would reassert her claims. Any such prejudice would, in my view,

be minimal, as Defendant could simply reassert its motion to dismiss and resume its

defense at precisely the same point. None of the grounds asserted in GMAC’s Rule

12(b)(6) Motion would be diminished in the slightest sense by any delay. I am satisfied that

no significant prejudice will result from Plaintiff’s voluntary suspension of her case at this

time. Since GMAC is simply a service company with respect to the mortgage in issue, the

prospect that Plaintiff will refile a complaint against GMAC is remote. Thus, even if

Defendant had sought dismissal in an Answer or Motion for Summary Judgment, I would

recommend that the court approve Plaintiff’s Motion to Dismiss voluntarily and without

prejudice.

I note that Plaintiff expressed her desire for dismissal in the form of a Motion, rather

than the “notice” contemplated in Rule 41. It may well be that Plaintiff failed to appreciate

her right to voluntary dismissal without prejudice at this juncture. Nonetheless, I am

satisfied that her “Motion” adequately evidences her desire and intent to terminate her

prosecution of the Complaint against GMAC, without sacrifice of her right to reassert her

claims in the future. I am satisfied that her “Motion” adequately communicates to Defendant

the Plaintiff’s intent to voluntarily suspend this action. Having afforded Defendant actual

“notice” of that intent, before the filing of an Answer or Motion for Summary Judgment, I am

satisfied that the Plaintiff is entitled to the benefit of voluntary dismissal pursuant to Rule

41(a)(1). Judicial economy would be best served by a prompt termination of these

proceedings. Defendant GMAC, LLC’s Motion to Dismiss should be denied as moot.

2:09-cv-12108-DML-DAS Doc # 31 Filed 11/18/09 Pg 6 of 8 Pg ID 297
7

For all of the above reasons, I recommend that Defendant GMAC, LLC’s Motion to

Dismiss be denied as moot, and that this action be dismissed, without prejudice, as to

Defendant GMAC.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within ten (10) days of service of a copy hereof

as provided for in 28 U.S.C. Section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file

specific objections constitutes a waiver of any further right of appeal. United States v.

Walters, 638 F.2d 947 (6th Cir. 1981), Thomas v. Arn, 474 U.S. 140 (1985), Howard v.

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991). Filing of objections that raise some issues

but fail to raise others with specificity, will not preserve all the objections a party might have

to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231,

829 F.2d 1370, 1373 (6th Cir. 1987), Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.

1991). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon

this Magistrate Judge.

Within ten (10) days of service of any objecting party's timely filed objections, the

opposing party may file a response. The response shall not be more than five (5) pages in

length unless by motion and order such page limit is extended by the Court. The response

shall address specifically, and in the same order raised, each issue contained within the

objections.

s/Donald A. Scheer

DONALD A. SCHEER

UNITED STATES MAGISTRATE JUDGE

DATED: November 18, 2009 

2:09-cv-12108-DML-DAS Doc # 31 Filed 11/18/09 Pg 7 of 8 Pg ID 298
8

CERTIFICATE OF SERVICE

I hereby certify on November 18, 2009 that I electronically filed the foregoing paper

with the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants on November 18, 2009: None.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

2:09-cv-12108-DML-DAS Doc # 31 Filed 11/18/09 Pg 8 of 8 Pg ID 299