JONES, Circuit Judge.
The United States brought a proceeding to revoke the naturalization
With some exceptions an action may be dismissed before the adverse party has answered or moved for summary judgment "by filing a notice of dismissal". Rule 41(a) (1), Fed.Rules Civ. Proc., 28 U.S.C.A. The provision of the Rules here applicable is:
Under Rule 41(a) (1) dismissal of an action may be effected by the filing of a notice and no order of court is required. Notice to the defendants is not required in such a case. Silver v. Indemnity Ins. Co., D.C.Conn.1948, 80 F.Supp. 541. Under Rule 41(a) (2) an order is essential. This contemplates the filing of a motion as was done here. 2 Baron & Holtzoff, Federal Practice and Procedure, Rules Ed. 618, § 912. Motions, except those which may be heard ex parte, shall be served on the adverse party. Rule 5(a), Fed.Rules Civ.Proc. 28 U.S.C.A. Where terms and conditions may be imposed a hearing should be had at which the views and claims of the defendant may be asserted. Cf. 27 C.J.S. Dismissal and Nonsuit § 71, p. 248. Particularly is this true where the granting or denial of the motion is in the court's discretion.
It has been held that the only discretion which the court can exercise under Rule 41(a) (2) is as to terms and conditions but not as to the right of a plaintiff to have entered an order of dismissal without prejudice. Bolten v. General Motors Corporation, 7 Cir., 1950, 180 F.2d 379, 21 A.L.R.2d 623, certiorari denied 340 U.S. 813, 71 S.Ct. 41, 95 L. Ed. 598. The decision so holding has been criticized. Ockert v. Union Barge Line Corporation, 3 Cir., 1951, 190 F.2d 303, 304. The better rule and that represented by the weight of authority is that the court may, in the exercise of its discretion, deny the motion or grant it and if it be granted such terms and conditions may be imposed as are proper. Home Owners Loan Corporation v. Huffman, 8 Cir., 1943, 134 F.2d 314, certiorari denied 316 U.S. 681, 62 S.Ct. 1268, 86 L.Ed. 1754, cited in Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849; Westinghouse Electric Corporation v. United Electrical, etc. Workers, 3 Cir., 1952, 194 F.2d 770, certiorari denied 343 U.S. 966, 72 S.Ct. 1060, 96 L.Ed. 1362, and see Ockert v. Union Barge Line Corporation, supra, and cases cited therein and in Annotation at 21 A.L.R.2d 627.
The order of dismissal will be vacated and the cause will be remanded in order that a hearing may be had upon the motion and a determination made, in
Vacated and remanded.