The opinion of the court was delivered by: Noel L. Hillman, U.S.D.J.
MEMORANDUM OPINION & ORDER TO SHOW CAUSE
WHEREAS plaintiff having filed a complaint against defendants alleging medical malpractice*fn1; and
Defendants having answered plaintiff's complaint denying liability; and
Plaintiff having recognized that in order to proceed with his claims, he is required to provide an affidavit of merit pursuant to New Jersey's Affidavit of Merit statute*fn2; and
Plaintiff having requested leave of Court for additional time to obtain and serve his affidavit of merit; and
The Court having granted that request; but
Plaintiff having subsequently informed the Court that he was not going to obtain an affidavit of merit; and
Plaintiff having further requested that his case be marked "dismissed" pursuant to Fed. R. Civ. P. 41(a)(1); and
On November 24, 2009, the Court having entered an Order of Dismissal, which described the case as "settled," dismissed the action without prejudice, and retained jurisdiction for 60 days to enforce the terms of the settlement; but
Defendants having contacted the Court to point out that (1) the case was not settled, (2) plaintiff cannot avail himself of Rule 41(a)(1), and (3) plaintiff's failure to provide an affidavit of merit would result in a dismissal with prejudice; and
Defendants further requesting that plaintiff's case should be dismissed with prejudice, or it should be reopened to allow them to file motions to dismiss plaintiff's case for failure to provide an affidavit of merit, which would result in a dismissal with prejudice; and
The Court noting that Fed. R. Civ. P. 41 governs the dismissal of actions, and that a voluntary dismissal, or one pursuant to court order, under this Rule is considered a dismissal without prejudice; and
The Court further noting that Rule 41 allows a plaintiff to voluntarily withdraw his complaint at any time prior to the filing of an answer or a motion for summary judgment; but
The Court recognizing that because defendants had filed their answers to plaintiff's complaint, voluntary dismissal pursuant to Rule 41 was not ...