The opinion of the court was delivered by: Bumb, United States District Judge:
NOT FOR PUBLICATION [Dkt. Nos. 12 and 17]
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").*fn1
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.
On or about November 12, 2010, Plaintiff filed her Complaint 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).
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.
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, 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.*fn2 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).
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