Opinion
C/A 9:23-cv-00270-MGL-MHC
06-13-2023
Larry James Tyler, Plaintiff, v. Waddell Coe and James Hudson, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff, proceeding pro se, filed this civil action asserting violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Defendants filed an Answer on April 20, 2023. ECF No. 10.
Before the Court is Plaintiff's Motion to Dismiss Case, filed on June 5, 2023 (“Plaintiff's Motion”). ECF No. 13. Defendants have advised the Court that they have no objection to Plaintiff's Motion. ECF No. 14. Plaintiff's Motion is ripe for review.
Plaintiff styled his filing as a Notice of Voluntary Dismissal pursuant to Rule 41(a). ECF No. 13. However, because Defendants had already filed an Answer in this action before Plaintiff filed the Notice, the Court construes Plaintiff's filing as a Motion to Dismiss pursuant to Rule 41(a)(2), as opposed to a notice of dismissal pursuant to Rule 41(a)(1). See Fed.R.Civ.P. 41(a) (providing that a plaintiff may dismiss an action via notice of dismissal only before the opposing party serves either an answer or a motion for summary judgment).
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B) (D.S.C.). Because Plaintiff's Motion is dispositive, this Report and Recommendation is entered for review by the District Judge.
DISCUSSION
Rule 41(a)(2) of the Federal Rules of Civil Procedure states: “Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2). The Fourth Circuit has expressed that voluntary dismissal under Rule 41(a)(2) is favored, and a plaintiff's motion to dismiss pursuant to this Rule “should not be denied absent substantial prejudice to the defendant.” Evans v. Milliken & Co., C/A No. 7:13-cv-2908-GRA, 2013 WL 6780588, at *3 (D.S.C. Dec. 19, 2013) (citing Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986)); see also Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987). As a general rule, a plaintiff's motion for voluntary dismissal without prejudice under Rule 41(a)(2) should not be denied absent plain legal prejudice to the defendant. Gross v. Spies, 133 F.3d 914 (Table), 1998 WL 8006, at *5 (4th Cir. 1998).
When ruling on motions for voluntary dismissal, the court should consider the following factors: “(1) the opposing party's effort and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the movant; (3) insufficient explanation of the need for dismissal; and (4) the present stage of the litigation.” Id. “These factors are not exclusive, however, and any other relevant factors should be considered by the district court depending on the circumstances of the case.” Id.
Here, Plaintiff has advised the Court that he voluntarily wants to dismiss this case, and Defendants consent to the dismissal of this case. Applying the Gross factors, the undersigned finds no plain legal prejudice to Defendants and concludes that the case should be dismissed without prejudice. See Gross, 1998 WL 8006, at *5; Evans, 2013 WL 6780588, at *3.
RECOMMENDATION
Based upon the foregoing, the undersigned RECOMMENDS that the Plaintiff's Motion to Dismiss (ECF No. 13) be GRANTED pursuant to Federal Rule of Civil Procedure 41(a)(2) and this action be DISMISSED without prejudice.
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).