Kazue Swedberg v. Emil Marotzke

OPINION

JOHN R. GIBSON, Senior Circuit Judge.

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 1 ultimate conclusion correctly…