dissenting:
The purpose of the requirement in Rule 41(a)(1)(h) that the plaintiff obtain the defendant’s consent to dismissal is to protect defendants from arbitrary actions by plaintiffs. In view of the fact that in this case it is uncontroverted that both the plaintiffs and the defendants agreed in 1991 that the case should and would be dismissed and that the plaintiffs filed with the court a written— albeit defective — notice so stating, I see no purpose in holding that the failure to file a proper stipulation prevented this conceded agreement from taking effect. This is so particularly in view of the fact that it is well established that court approval is not necessary in order for a Rule 41(a)(1)(h) stipulation to be effective. For all of these reasons, I respectfully dissent.
As the majority quite correctly notes, none of the cases relied on by Mancuso is controlling in the present case because no oral stipulation was made in the presence of the district court. On the other hand, the rationale for these cases — that it elevates form over substance to refuse to honor the parties’ undisputed agreement to dismiss simply because the formal requirements of the Rule have not been followed — is certainly equally applicable here. See, e.g., Oswalt v. Scripto, Inc., 616 F.2d 191, 196 (5th Cir.1980) (“[t]o require the filing a formal document would be to countenance a mechanistic view of the Federal Rule of Civil Procedure and exalt form over substance”).
Rule 41(a)(1) was designed to permit the plaintiff, with ease and without court intervention or approval, “to take a voluntary nonsuit and start over so long as the defendant is not hurt.” See McCall-Bey v. Franzen, 777 F.2d 1178, 1184 (7th Cir.1985). Accordingly, the rule provides that a plaintiff can dismiss without the court’s permission and without prejudice to being able to file a new suit if: (i) the defendant has not yet answered or moved for summary judgment or (ii) the defendant consents. The requirement that a defendant’s consent in Rule 41(a)(l)(ii) is, as the majority recognizes, designed to protect defendants. It is not designed to provide a means for plaintiffs to avoid by a technicality the dismissal of an action which they initially brought and which they have unequivocally sought to dismiss.
It can be argued, as the majority suggests, that in order to avoid possible abuse of the *54rule by a plaintiff, it is necessary to require that any oral stipulation be made in the presence of the court; otherwise, a plaintiff could, in violation of Rule 41(a)(l)(i), dismiss a case without a defendant’s consent after the defendant had answered the complaint or moved for summary judgment. This may indeed provide a sound basis for requiring that an oral stipulation be made in the presence of the court in some cases, but it provides no basis for that conclusion here. This is so because here it is uncontroverted that in 1991 the plaintiffs and defendants agreed to dismiss this case. In other words, it is undisputed that in 1991 the defendants did consent, indeed that all parties stipulated to dismissal. The contemporaneous written notice of dismissal filed by the plaintiffs, evidencing this stipulation, did not comply with the strict requirements of the rule because it did not include the defendants’ signatures. However, there is no evidence — indeed no claim — that this notice did not, in fact, reflect the parties’ agreement that the case should be dismissed.
There are thus two critical undisputed facts here: (1) all parties did agree to dismiss the case in 1991 and (2) the notice contemporaneously and timely filed in court by the Camachos’ counsel in 1991 accurately reflected this agreement. These facts distinguish this case from Orsini v. Kugel, 9 F.3d 1042, 1045 (2d Cir.1993) (parties disagreed both as to whether they had agreed to dismiss certain claims and whether the “stipulation of discontinuance” evidenced this), Carter v. Beverly Hills Sav. & Loan Ass’n, 884 F.2d 1186, 1191 (9th Cir.1989) (parties never orally or in writing agreed to dismissal but only to an order vacating the pretrial conference and trial dates), cert. denied, 497 U.S. 1024, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990), McCall-Bey, 777 F.2d at 1185 (notice evidencing stipulated dismissal not contemporaneously and timely filed in court and not filed until after court had already dismissed ease without prejudice), and Wheeler v. American Home Prods. Corp. (Boyle-Midway Div.), 582 F.2d 891, 895 (5th Cir.1977) (not all parties agreed to dismiss suit — intervenors did not agree — and there was no notice filed with the court indicating agreement by all parties).
These facts do not, however, distinguish this case from Morris v. City of Hobart, 39 F.3d 1105 (10th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1960, 131 L.Ed.2d 852 (1995). There it was apparently conceded that the parties agreed to dismissal and that the plaintiff filed a document evidencing that agreement. Id. at 1108. Nevertheless, the Tenth Circuit held that there was no dismissal meeting the requirements of Rule 41(a)(l)(ii). Id. at 1109. I do not find Morris persuasive for two reasons. First, this holding was not critical to the ultimate decision of the Moms court because the court ultimately concluded that the case had been properly dismissed pursuant to Rule 41(a)(2), i.e., by order of court. Id. at 1109. Secondly, the analysis in Morris is not compelling.
The Morris court conceded that “under certain circumstances, an oral stipulation by the parties in court may satisfy the requirements of Rule 41(a)(1)(h)....” 39 F.3d at 1109 (emphasis added). But the court failed to explain why an identical oral stipulation not in the presence of the court, but accurately evidenced by a contemporaneous written notice filed with the court, should not also satisfy the requirements of the rule. It is well established that a “voluntary dismissal by stipulation is effective immediately upon filing and does not require judicial approval.” 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2363, at 270-271 (2d ed. 1995). In view of this principle, it seems anomalous to hold that an oral stipulation must be made in the presence of the court in order to be effective.
Of course, if there had been an oral stipulation to dismiss with prejudice or there had not been a contemporaneous, timely, written notice filed with the court evidencing the oral stipulation, then there well might be sound reasons for not permitting an out-of-court oral stipulation to satisfy the requirements of the rule. See McCall-Bey, 777 F.2d at 1185. Here, however, the dismissal was without prejudice and there was a contemporaneous, timely, written notification to the court of the oral stipulation, i.e., the court was timely told that the parties “had ended their dispute.” Id.
*55On the particular facts of this case — a specific agreement by all parties to a dismissal and a contemporaneous document timely filed by the plaintiffs with the court accurately reflecting this agreement — I believe that it is unjust* to permit the plaintiffs to take advantage of their own negligence in failing to procure the defendants’ signatures, and so resuscitate their lawsuit years after the plaintiffs themselves had notified the court that it had been dismissed.
Accordingly, I would reverse.
It is also contrary to the spirit, if not the letter, of Local Rule 103.8b (“[i]f no paper has been filed in Court in any action for more than nine months, the Court may enter an order asking the parties to show cause why all affirmative claims for relief asserted in the action should not be dismissed. If good cause is not shown within ten days of the entry of the show cause order or such other time as may be set by the court, such claims shall be dismissed without prejudice”).