Opinion
C. A. 9:22-cv-00216-MGL-MHC
06-01-2022
Larry James Tyler, Plaintiff, v. James Hudson, Sheriff; and Diann Wilkes, Medical Director, 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. Before the Court is Plaintiff's Motion to Dismiss Case, filed on May 11, 2022 (“Plaintiff's Motion”). ECF No. 28. Defendant Hudson filed an Opposition to the Motion, ECF No. 29, and Defendant Wilkes did not respond to Plaintiff's Motion. Plaintiff's Motion is ripe for review. 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.
Defendant Wilkes had previously filed a Motion to Dismiss on April 14, 2022. ECF No. 20. That motion is still pending before this Court and will be rendered moot if the Court grants Plaintiff's Motion.
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.
Applying the Gross factors, Defendant Hudson argues that Plaintiff's case should not be dismissed without prejudice because “the discovery period is quickly coming to an end and this Defendant has already expended significant monies in both defending the instant action and in preparation for the filing of a motion for summary judgment.” ECF No. 29 at 2. He further argues that Plaintiff's explanation for the need for dismissal-due to his “trigger finger injury,” which makes him unable to write-is unsupported by medical evidence and without merit, arguing that had Plaintiff wished to seek dismissal without prejudice, he should have done so “well before the eve of summary judgment.” Id.Finally, Defendant Hudson contends that Plaintiff has filed similar motions to voluntarily dismiss past cases, and that his “excessive delay and/or lack of due diligence also supports a dismissal, but with prejudice.” Id.
While the undersigned recognizes that Defendant Hudson has incurred time and expense with regard to the discovery conducted in this case, as well as motion preparation, the undersigned is not persuaded that Plaintiff demonstrated excessive delay or a lack of due diligence or that his Motion was filed “on the eve of summary judgment.” Plaintiff filed his Motion weeks before the discovery period was set to end on May 31, 2022, and well over a month before the dispositive motion deadline of June 30, 2022. SeeECF No. 16 (Scheduling Order). And, no motion for summary judgment has been filed in this case, and no trial date has been set. Finally, in light of Plaintiff's pro se status and his need to hand-write his filings in this case, Plaintiff has provided sufficient explanation for his need to dismiss the case due to a hand injury.
Other than potentially facing renewed litigation, Defendants will not suffer substantial or legal prejudice from a voluntary dismissal of Plaintiff's case at this time. See, e.g., Davis, 819 F.2d at 1274-75 (“[Prejudice to the defendant does not result from the prospect of a second lawsuit,” nor will “the possibility that the plaintiff will gain a tactical advantage over the defendant in future litigation . . . serve to bar a second suit.”). Moreover, whatever discovery took place likely can be used in a subsequent lawsuit. See Flath v. Bombardier, Inc., 217 F.3d 838 (4th Cir. 2000) (Table) (fact that parties had engaged in a considerable amount of discovery not sufficient to establish that defendants would be substantially prejudiced by Rule 41(a)(2) dismissal). Accordingly, having found no plain legal prejudice to Defendants, and mindful that voluntary dismissal under Rule 41(a)(2) is favored, the undersigned recommends that Plaintiff's Motion be granted and that the case 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. 28) be GRANTED pursuant to Federal Rule of Civil Procedure 41(a)(2) and this action be DISMISSED without prejudice. If the Court adopts this recommendation, Defendant Wilkes's Motion to Dismiss (ECF No. 20) will be MOOT. See supra, note 1.
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); seeFed. 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).