In re Bath & Kitchen Fixtures Antitrust Litig.

535 F.3d 161



A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is neither an answer nor a motion for summary judgment; therefore, its filing does not cut off a plaintiff’s right to dismiss by notice under Fed. R. Civ. P. 41.


Purchasers of bath and kitchen plumbing fixtures filed class action complaints against the manufacturers, alleging a price-fixing conspiracy in violation of Section 1 of the Sherman Act. Seventeen cases were consolidated in the District Court. Instead of filing an answer, defendants moved to dismiss the consolidated and amended complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

The district court indicated that it would grant the motions, but instead of dismissing the consolidated complaint, it gave the purchasers leave to amend the complaint to meet Fed. R. Civ. P. 8(a)(2) requirements. The purchasers filed a voluntary dismissal notice under R. 41(a)(1)(A)(i) before the deadline for filing the amended complaint expired. The manufacturers moved to strike that notice, claiming that it was untimely. They also asked the district court to dismiss the complaint with prejudice in accordance with its prior dismissal order. The district court granted that relief and purchasers appealed.


Was the purchaser’s notice of voluntary dismissal untimely, per the district court order?




Here, the Notice was timely because defendants had filed neither an answer nor a motion for summary judgment as of the date of the Notice, and because the District Court's July 19, 2006, order had not clearly put an end to the "action" to which Rule 41 refers.

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