(251) 299-0101

VOLUNTARY DISMISSAL - RULE 41(A)(1), ALA. R. CIV. P. - DEFENDANTS' STANDING TO SET ASIDE VOLUNTARY DISMISSAL - WALKER BROTHERS V. CITY OF MOBILE

Walker Brothers v. City of Mobile, [Ms. 1160203, Sept. 15, 2017] __ So. 3d __ (Ala. Civ. App. 2017). This decision by Justice Bryan, (Stuart, C.J., and Bolin, Parker, Shaw, Wise, and Sellers, JJ., concur; Murdock and Main, JJ., dissent), dismisses an appeal by Walker Brothers against the City of Mobile. The City sued Walker Brothers seeking injunctive relief to address the alleged failure of Walker Brothers to maintain a building in a historic district. Walker Brothers counterclaimed asserting that the City had subjected it to unequal treatment in violation of Walker Brothers’ constitutional and statutory rights.

Before Walker Brothers answered the complaint or asserted counterclaims, the City filed a motion to dismiss with the circuit court contending that the case had become moot as a result of Walker Brothers complying with the City’s request to “mothball” the building until such time as a party interested in restoring the building could be identified. Ms. *3. The Court treated the City’s motion to dismiss according to its substance rather than its form and concluded that it was a motion compliant with Rule 41(a)(1), Ala. R. Civ. P.. The Court held that Rule 41, Ala. R. Civ. P. “affords the plaintiff an unqualified right to dismiss its action before the filing of an answer or summary-judgment motion.” Ms. *9, quoting Ex parte Sealy, 904 So. 2d at 1235. Ms. at *9. The Court noted that “although Walker Brothers had appeared at the preliminary-injunction hearing on September 5, 2012, the record unequivocally establishes that Walker Brothers had not served an answer pursuant to Rule 5(e), Ala. R. Civ. P., or a motion for summary judgment before the City filed its ‘motion’ to dismiss.” Ms. *10. The Court held that because the City’s motion met the requirements of Rule 41(a)(1)(i), an order from the circuit court dismissing the City’s action was not required. Ms. *10.

The Court then considered whether Walker Brothers’ motion to reinstate the action so that it could file counterclaims was permitted by Rule 41(a)(1). The Court concluded that “only the plaintiff may file a motion seeking to reinstate an action after its voluntarily dismissal pursuant to Rule 41(a)(1)(i).” Ms. *23.

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