dissenting:
I agree with the majority that the trial court was not required to treat appellant’s motion under Super.Ct.Civ.R. 12(b)(6) as an answer or a motion for summary judgment, which would have permitted dismissal only with court approval. Ante at 125; see Super.Ct.Civ.R. 41(a)(l)-(2). I would affirm, however, on the ground that appellee accordingly had a right to voluntary dismissal under Super.Ct.Civ.R. 41(a)(1).
I would not avoid this result by invoking the exception to Rule 41(a)(1) suggested in Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105, 107-08 (2d Cir.), cert. denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383 (1953). Courts have severely criticized and rarely followed Harvey. The case is in derogation of Rule 41(a), which itself reflects a compromise as to the ease and frequency with which a plaintiff can voluntarily dismiss a lawsuit. See generally 5 Moore’s Federal Practice ¶ 41.02[3], at *13041-32 to -34 (2d ed. 1980); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2363, at 156-58 (1971 & Supp.1980).
If this court is to bring Harvey into this jurisdiction, I would reserve its invocation for a case more compelling on the facts. In this case, it appears unlikely that the appellee will sue again, at least on the facts alleged here, because the cause of action appears to be barred both in the District of Columbia, see D.C.Code 1978 Supp., § 16-923 and in New York, see Hanfgarn v. Mark, 274 N.Y. 22, 27, 8 N.E.2d 47, 48, modified, 274 N.Y. 570, 10 N.E.2d 556, appeal dismissed, 302 U.S. 641, 58 S.Ct. 57, 82 L.Ed. 498 (1937).