voluntary dismissal of a defendant before he is served with process?

Question

I filed my Complaint with the federal court. Can I voluntarily dismiss a defendant before he is served with process - for instance - can I send the voluntarily dismissal to him instead of serving him with the complaint and summons, or, let's say, mail the voluntary dismissal, the summons and complaint to him all at once? Don't ask me why - just answer the question please.

Answer 1

The Federal Rules of Civil Procedure provide that a party may be dropped once as a matter of course without a court order.

"Rule 41. Dismissal of Actions
(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; By Stipulation.

Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs......."

The rules also provide that if the complaint has never been served on the defendant, a voluntary dismissal need not be served on him/her.

Rule 5(a) provides:

".....and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear."

However, the failure to serve a named defendant a summons, means they are NOT a party until the court takes jurisdiction over them (through service of the summons), or they voluntarily appear in the action and waive service of process.

You can choose to either serve them with the paper, or simply file it and provide a copy of it to the Clerk in your certificate of service.

Answer 2

You can file a notice of dismissal under Federal Rule of Civil Procedure 41(a). Case over. You don't have to send him anythng or even let him know you filed the suit. You should see a lawyer before you do anything to see if there's any special circumstance involved. For example, there are consequences if you've already sued this guy once before and dismissed.