NOT FOR PUBLICATION [Dkt. Nos. 12 and 17]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

 

:

ADELAIDE LOMBARSKI, :

: Civil Action No. 10-6588

Plaintiff, : (RMB/KMW)

:

v. :

: OPINION

CAPE MAY COUNTY, et al., :

:

Defendants. :

:

 

Appearances:

James E. Moore, Esquire

Barry Corrado Grassi & Gibson PC

2700 Pacific Avenue

Wildwood, New Jersey 08260 

Attorney for Plaintiff

Susanna J. Morris, Esquire

Budd Larner, PC

1939 Route 70 East, Suite 100

Cherry Hill, New Jersey 08003 

Attorney for Defendant Cape May County 

William F. Cook, Esquire

William M. Tambussi, Esquire

Brown & Connery

360 Haddon Avenue

Westmont, New Jersey 08108

Attorneys for Defendants Cape County Municipal Utilities

Authority, John R. Baron, Vincenette C. DiCicco,

Charles M. Norkis, and Francis M. Simcik

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A. Michael Barker, Esquire

Barker, Scott & Gelfand

Linwood Greene

210 New Road, Suite 12

Linwood, New Jersey 08221 

Attorney for Defendant Joseph E. Horn

BUMB, UNITED STATES DISTRICT JUDGE:

This matter comes before the Court upon a motion to dismiss

the Complaint by Defendants, Cape May County Municipal Utilities

Authority, Joseph E. Horn, John R. Baron, Vincenette C. DiCicco,

Charles M. Norkis, and Francis K. Simcik [Dkt. No. 12] and

Defendant Joseph E. Horn [Dkt. No. 17] (collectively

“Defendants”).1 In response, Plaintiff Adelaide Lombarski

(“Plaintiff”) has cross-moved for voluntary dismissal of the

Complaint, which asserts both federal and state law claims. 

Alternatively, Plaintiff “offers no response to defendants’

motion to dismiss on the federal claims,” Pl. Opp. Br. at 5, and

requests that the Court decline to exercise its supplemental

jurisdiction over the remaining state law claims pursuant to 28

U.S.C. § 1367(c)(3). For the reasons set forth herein,

Plaintiff’s motion is granted, and Defendants’ motion is granted

in part and denied in part as moot. 

I. Plaintiff’s Complaint

On or about November 12, 2010, Plaintiff filed her Complaint

1

 The remaining Defendant, Cape May County, has not moved

for dismissal.

2

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in the Superior Court of New Jersey, Law Division, Cape May. On

December 17, 2010, Defendants removed the lawsuit to this Court

pursuant to 28 U.S.C. § 1441. 

In her Complaint, Plaintiff states that she was a seasonal

employee at the Cape May County Municipal Utilities Authority’s

solid waste transfer station in Burleigh, Middle Township, New

Jersey. Plaintiff avers that on June 6, 2009, she was sexually

harassed and assaulted by Defendant Horn, a senior transfer

station equipment operator at that time. Plaintiff alleges the

following claims arising from the June 6 incident: (1) violation

of substantive due process rights; (2) assault and battery; (3)

failure to train; (4) intentional infliction of emotional

distress; (5) hostile work environment under the New Jersey Law

Against Discrimination; (6) municipal liability under 42 U.S.C. §

1983; and (7) civil conspiracy. Defendants move to dismiss

pursuant to Rule 12(b)(6).

II. Legal Analysis

Because the Defendants’ motion to dismiss would be rendered

moot if the Court grants Plaintiff’s request for a voluntary

dismissal, the Court first turns to Plaintiff’s cross-motion. 

A. Voluntary Dismissal

The purpose of Rule 41 is to “give a [plaintiff] a right to

take his case out of court when no one else will be prejudiced by

his doing so.” Ockert v. Union Barge Line Corp., 190 F.2d 303,

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304 (3d Cir. 1951). Rule 41(a)(1) provides two methods by which

a plaintiff may voluntarily dismiss a complaint. Subdivision

(A)(ii) permits the plaintiff to dismiss the action by

stipulation by all parties at any time.2 Subdivision (A)(i), by

contrast, permits a plaintiff to dismiss the action unilaterally

by filing a notice of dismissal with the court prior to the

service of an answer or summary judgment motion by an opposing

party. See 9 Wright & Miller, Federal Practice & Procedure §

2363 (3d ed. 2010). As the Third Circuit explained:

The Rule “affixes a bright-line test to limit the right

of dismissal to the early stages of litigation,” Manze [v.

State Farm Ins. Co., 817 F.2d 1062, 1065 (3d Cir. 1987)],

which “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.” Id.

(quoting Winterland Concessions Co. v. Smith, 706 F.2d 793,

795 (7th Cir.1983)). Up to the “point of no return,”

dismissal is automatic and immediate-the right of a

plaintiff is “unfettered,” Carter v. United States, 547

F.2d 258, 259 (5th Cir. 1977). 

In re Bath and Kitchen Fixtures Antitrust Litigation, 535 F.3d

161, 165-66 (3d Cir. 2008). 

1. Rule 41(a)(1)(A)(i)

The moving Defendants have not filed an answer in this

matter.3 Typically, a motion to dismiss does not extinguish a

2

 Plaintiff represents in her brief opposing dismissal that

Defendant Horn would not consent to a voluntary dismissal without

imposition of costs. See Opp. Br. at 2.

3

 Defendant Cape May County answered Plaintiff’s Complaint

on December 31, 2010 but to date has taken no position on

4

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plaintiff’s right of voluntary dismissal. Id. at 166 (“Because a

motion to dismiss under Fed.R.Civ.P. 12(b)(6) is neither an

answer nor a motion for summary judgment, its filing generally

does not cut off a plaintiff's right to dismiss by notice.”). 

Defendants have, however, supported their motion to dismiss by

attaching matters outside the pleadings. Thus, if the Court

accepted these extra-pleaded materials, the motion would convert

to one for summary judgment, see Fed.R.Civ.P. 12(d), and would

fetter Plaintiff’s right to seek voluntary dismissal. See In re

Bath and Kitchen, 535 F.3d at 166 (“Only when a motion filed

under Fed.R.Civ.P. 12(b)(6) is converted by the district court

into a motion for summary judgment does it bar voluntary

dismissal.”). 

Such motions, however, do not bar a plaintiff from seeking

voluntary dismissal unless the Court elects to convert the motion

to one seeking summary judgment. See Lane v. CBS Broadcasting

Inc., Civ. No. 08-3175, 2008 WL 7484460, at *1 n.1 (E.D. Pa.

Oct. 31, 2008) (quoting Short v. Weinrebe, Civ. No. 87-5057, 1988

WL 71277, at *3 (E.D. Pa. June 30, 1988)) (“However, ‘[f]or the

purpose of Rule 41, before a Rule 12(b)(6) motion may be viewed

as a Rule 56 motion, the Third Circuit Court of Appeals requires

that: (1) a defendant intend its motion to dismiss to be one for

summary judgment; and (2) the court treat it as such.’”); see

Plaintiff’s request for dismissal. 

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also Swedberg v. Marotzke, 339 F.3d 1139, 1146 (9th Cir. 2003)

(“A Rule 12(b)(6) motion to dismiss supported by extraneous

materials cannot be regarded as one for summary judgment until

the district court acts to convert the motion by indicating,

preferably by an explicit ruling, that it will not exclude those

materials from its consideration. Until the district court has

so acted, a plaintiff is free to file a proper notice of

dismissal pursuant to Rule 41(a)(1).”); Finley Lines Joint

Protective Bd. Unit v. Norfolk S. Corp., 109 F.3d 993, 997 (4th

Cir. 1997) (“[W]e hold that a Rule 12(b)(6) motion to dismiss

supported by extraneous materials cannot be regarded as one for

summary judgment until the district court acts to convert the

motion by indicating that it will not exclude from its

consideration of the motion the supporting extraneous

materials.”); Aamot v. Kassel, 1 F.3d 441, 444-45 (6th Cir. 1993)

(“[T]he clear language of Rule 12(b) which permits a 12(b)(6)

motion accompanied by extraneous materials to be treated as a

motion for summary judgment is directed, not at the parties, but

at the court; conversion takes place at the discretion of the

court, and at the time the court affirmatively decides not to

exclude the extraneous matters.”).

Here, although Defendants have moved for dismissal, or

summary judgment in the alternative, the Court declines to

convert the motion to one for summary judgment. The Court

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therefore concludes that Plaintiff may dismiss her action against

the moving Defendants unilaterally pursuant to Rule

41(a)(1)(A)(i). The Court construes Plaintiff’s opposition brief

requesting voluntary dismissal as a notice of dismissal pursuant

to subdivision (A)(i).4 Thus, Plaintiff’s Complaint against the

moving Defendants is dismissed.5

Plaintiff’s proposed form of order seeks dismissal without

prejudice, albeit pursuant to Rule 41(a)(2). Thus, the Court

will dismiss Plaintiff’s claims without prejudice.6

 See In Re

Kitchen & Bath, 535 F.3d at 165 (A notice of dismissal in this

4

 Of course “[t]he right of voluntary dismissal by notice

prior to service of the answer or a motion for summary judgment

extends as fully to cases removed from a state court as it does

to cases commenced in federal court.” 9 Wright & Miller, supra, 

§ 2363. Indeed, voluntary dismissal “is frequently used...when a

plaintiff, who is unwilling to prosecute the action in federal

court, wishes to dismiss in order to start a new action in state

court and preclude removal by...the elimination of [] federal

claim[s]....” Id.

5 As noted, Defendant Cape May County did answer Plaintiff’s

Complaint. The filing of Cape May’s answer, however, does not

preclude Plaintiff from dismissing his Complaint against the

other named Defendants pursuant to Rule 41(a)(1)(a)(i). See

Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.

1997)(“The plaintiff may dismiss some or all of the

defendants...through a Rule 41(a)(1) notice. The filing of a

notice of voluntary dismissal with the court automatically

terminates the action as to the defendants who are the subjects

of the notice.”); see also 9 Wright & Miller, supra, § 2362.

6

 Although the Court dismisses this action without prejudice

the Court is mindful of Plaintiff’s representation that

“Plaintiff will be filing another complaint in state court,

asserting state law causes of action.” Pl. Opp. Br. at 5. The

Court understands Plaintiff to mean that she will not be

asserting federal claims in state court. 

7

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context “results in a dismissal without prejudice (unless it

states otherwise) as long as the plaintiff has never dismissed an

action based on or including the same claim in a prior case.”).

2. Rule 41(a)(2) 

Even if this matter were before the Court on a Rule 41(a)(2)

motion, as the parties presume, the Court finds dismissal would

be warranted, without prejudice and without costs. Rule

41(a)(2), which permits that “an action may be dismissed at the

plaintiff’s request only by court order, on terms that the court

considers proper,” warranted.7 “Generally, courts have followed

the principle that dismissal should be allowed unless the

defendant will suffer some plain legal prejudice other than the

mere prospect of a second lawsuit.” John Evans Sons, Inc. v.

Majik-Ironers, Inc., 95 F.R.D. 186, 190 (E.D. Pa. 1982). The

decision to grant or deny dismissal is left to the Court’s

discretion. Ockert, 190 F.2d at 304-05; In re Diet Drugs

(Phentermine /Fenfluramine / Dexfenfluramine) Products

Litigation, 85 Fed.Appx. 845, 847 (3d Cir. 2004).

Defendants do not oppose the Rule 41(a)(2) dismissal of the

7

 The Court does find that Plaintiff’s Complaint against

Defendant Cape May County, who has filed an answer in this matter

but has not otherwise opposed Plaintiff’s cross motion, should be

dismissed pursuant to Rule 41(a)(2). Furthermore, Defendants’

unopposed motion to dismiss Cape May County’s cross claims for

contribution and indemnification is granted because the cross

claims do not present an independent basis for this Court’s

jurisdiction. 

8

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Complaint on the following conditions: first, that the federal

claims be dismissed with prejudice; and second, that Plaintiff

reimburse them for the fees and costs associated with filing the

motion to dismiss. The Court addresses each condition in turn. 

As noted, Plaintiff’s proposed form of order seeks dismissal

without prejudice. Defendants argue that Plaintiff’s federal

claims should be dismissed with prejudice. When weighing whether

a defendant will suffer prejudice by permitting a voluntary

dismissal, courts consider the circumstances of each case,

including “(1) plaintiff's diligence in bringing the motion; (2)

any undue vexatiousness on plaintiff's part; (3) the extent to

which the suit has progressed; (4) the duplicative expense of

relitigation; and (5) the adequacy of plaintiff's explanation for

the need to dismiss.” See A.V. by Versace, Inc. v. Gianni

Versace S.p.A., 261 F.R.D. 29, 32 (S.D.N.Y. 2009) (citing Zagano

v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990)). Said

differently, Courts consider “the defendant's effort and expense

of preparation for trial, excessive delay and lack of diligence

on the part of the plaintiff in prosecuting the action,

insufficient explanation for the need to take a dismissal, and

whether a motion for summary judgment has been filed by the

defendant.” Bridgeport Music, Inc. v. Universal-MCA Music Pub.,

Inc., 583 F.3d 948, 953-54 (6th Cir. 2009) (quoting Grover by

Grover v. Eli Lilly and Co., 33 F.3d 716, 718 (6th Cir. 1994)).

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Here, Plaintiff provided notice of her intent to dismiss her

Complaint in response to Defendants’ Motions to Dismiss. The

Court finds no evidence of any undue vexatiousness or lack of

diligence on Plaintiff’s part and notes that this action remains

in its incipient stage. Given that it appears that discovery has

not yet commenced, there seems little concern that Defendants

incurred unnecessary expense. The Court further understands

Plaintiff to represent that she will no longer pursue her federal

claims, which further serves to minimize the risk that Defendants

will incur duplicative costs. 

Defendants fail to identify any prejudice they would incur

by permitting dismissal without prejudice other than their lack

of guarantee that Plaintiff will not re-file her federal claims

in state court. Certainly, should Plaintiff proceed in this

manner, the Court would address such issues if Defendants were to

re-remove this action. 

Defendants also argue that Plaintiff should be responsible

for the costs and fees incurred by filing their motion to

dismiss.8 Defendants make two arguments in this regard. First,

8 Generally, when an action is dismissed with prejudice, a

defendant may not recover attorney’s fees because Rule 41(a)(2)

is designed to reimburse a defendant who will likely incur

additional costs upon the re-filing of a lawsuit. This risk is

not present when the action is dismissed without prejudice. See,

e.g., Dorfsman v. Law School Admission Council, Inc., Civ. Action

00-0306, 2001 WL 1754726, at *3 (E.D.Pa. 2001). Also, where

there is independent statutory authority to award fees, fees may

be appropriately awarded. See Smoot v. Fox, 353 F.2d 830, 832-33

10

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they contend that such an award is proper under Rule 41(a)(2). 

Second, they argue, they are prevailing parties under 42 U.S.C. §

1988(b). 

The “terms that the court considers proper” set forth in

Rule 41 are usually for the protection of the defendant. See

Fed.R.Civ.P. 41(a)(2); 9 Wright & Miller, supra, § 2366. Indeed,

orders that the plaintiff pay the costs of litigation are

considered commonplace. Id. The Court finds that the imposition

of fees and costs is not warranted here, however. The case was

recently filed and no discovery has been conducted by Defendants. 

Moreover, in filing the within motion to dismiss, Defendants

received much of what they sought, a dismissal of several of

Plaintiff’s claims. Given that the litigation remains in its

earliest stage, as noted, the risk that Defendants will incur

duplicative costs remains minimal. See, e.g., Davis v. USX

Corp., 819 F.2d 1270, 1276 (4th Cir. 1987)(“It is evident from

the record that the work and resources expended to date during

this litigation will be easily carried over to litigation of the

plaintiff's cause of action in state court. There is no basis,

therefore, for concluding that the defendant will be prejudiced

by a failure to impose this condition on the plaintiff,

especially when federal discovery will be useable in the state

forum.”).

(6th Cir. 1965).

11

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Further, there is nothing in the record to suggest any

misconduct by Plaintiff. Clearly, Plaintiff is desirous of

having her claims adjudicated in state court. She has that

right. Had Defendants reached out to Plaintiff prior to their

removal of the action to this Court for the purpose of getting

Plaintiff to agree to a dismissal of her federal claims, and

Plaintiff refused, only to do so after removal (whether or not a

motion to dismiss was filed), Defendants would most likely be

entitled to attorney’s fees. Such conduct would have been

gamesmanship. Those are not the facts, here, however.

Defendants alternatively argue that they are the “prevailing

party” under 42 U.S.C. § 1988(b)9, and thus, are entitled to

attorney’s fees. The standard for awarding attorney’s fees to

prevailing defendants is more stringent than that for awarding

fees to prevailing plaintiffs. See Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 421 (1978). A prevailing defendant is

entitled to attorney’s fees only “upon a finding that the

plaintiff’s action was frivolous, unreasonable or without

foundation....” Barnes Foundation v. Township of Lower Merion, 

242 F.3d 151, 158 (3d Cir. 2001) (quoting Christiansburg, 434

U.S. at 416-17, 421). Even assuming Defendants are the

9

 Section 1988(b) provides, “In any action or proceeding to

enforce a provision of [Section 1983] . . . the court, in its

discretion, may allow the prevailing party, other than the United

States, a reasonable attorney’s fee as part of the costs[.]” 42

U.S.C. § 1988(b). 

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“prevailing parties” within the meaning of the statute–an issue

this Court need not address–the Court finds that an award of

attorney’s fees is not warranted for the same reasons expressed

above.

III. Conclusion

For the foregoing reasons, Plaintiff’s cross-motion for a

voluntary dismissal is granted. Plaintiff’s Complaint is

dismissed without prejudice. No fees or costs are awarded to

either party. Defendants’ motion to dismiss the cross claims

filed by Cape May County is granted. Defendants’ motion to

dismiss Plaintiff’s Complaint is denied as moot.

Dated: April 5, 2011 s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

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