Winchester v. Fred's Stores, Inc.

Full title: DANNY JOE WINCHESTER PLAINTIFF v. FRED'S STORES, INC. OF TENNESSEE, INC…

Court: United States District Court, E.D. Arkansas, Pine Bluff Division at Pine Bluff, Arkansas

Date published: Sep 28, 2005

No: 5:04CV00357 JMM (E.D. Ark. Sep. 28, 2005)

Opinion

No: 5:04CV00357 JMM.

September 28, 2005

ORDER

JAMES MOODY, District Judge

Pending is Plaintiff's motion for voluntary dismissal without prejudice (nonsuit).

"Motions to dismiss without prejudice are addressed to the sound discretion of the district courts." Kern v. TXO Production Corp., 738 F.2d 968, 970 (8^th Cir. 1984). "The general practice of the federal courts is to permit voluntary dismissal, `unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit.'" St. Paul Fire and Marine Ins. Co. v. Casualty Reciprocal Exchange, 118 F.R.D. 480, 483 (W.D. Ark. 1987) (quoting 9 Wright Miller, Federal Practice and Procedure § 2364 at 165 (1971)).

Rule 41(a)(2) gives the court discretion to order the dismissal "upon such terms and conditions as the court deems proper." Fed.R.Civ.P. 41(a)(2). Rule 41(d) gives the court discretion "to make such order for the payment of costs of the action previously dismissed as it may deem proper," if a plaintiff files an action based upon or including the same claim against the same defendant. Fed.R.Civ.P. 41 (d).

The Court finds that Plaintiff's motion should be granted and orders that Plaintiff will be required to pay certain costs and attorneys fees associated with the defense of this action should he re-file his complaint.

Plaintiff's Motion for Voluntary Dismissal Without Prejudice (Nonsuit) is hereby GRANTED (#13).

IT IS SO ORDERED.