Kazue Swedberg v. Emil Marotzke

Emil Marotzke appeals from an order reinstating Kazue Swedberg’s dismissal of her complaint without prejudice. Mar-otzke contends his motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) was converted to a summary judgment motion because Swedberg filed extraneous materials with her opposition. Because Rule 41(a)(1) only permits dismissal without prejudice before a defendant has filed a summary judgment motion, Marotzke contends that Swedberg’s notice of dismissal was not effective. The district court’s ultimate conclusion correctly applies the language of Rules 41(a)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and therefore we affirm.

I.

This dispute arises out of Swedberg’s efforts to collect payments on a loan. Swedberg alleges that Marotzke has failed to repay the loan, and that she has the right to collect.

Swedberg filed her complaint against Marotzke on November 5, 1999. Marotzke did not answer. Instead, on December 7, 1999, he filed a Rule 12(b)(6) motion to dismiss on statute of limitations grounds. On December 21, 1999, Swedberg filed an opposition to the motion to dismiss or, in the alternative, a motion to transfer. She included with…