United States v. Kristin L. Dougherty


PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Michael J. Melloy and Bobby E. Shepherd (UNPUBLISHED) [3951035] [12-1809]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-1809 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Kristin L. Dougherty lllllllllllllllllllllMovant - Appellant Real Property located at Parcel No. 71-17A Estate Fish Bay, No. 8 Reef Bay Quarter, St. John, U.S. Virgin Islands, PWD No. D9-7414-T004, along with all its buildings, appurtenances, and improvements lllllllllllllllllllll Defendant ____________ Appeal from United States District Court for the Western District of Missouri - Kansas City ____________ Submitted: August 30, 2012 Filed: September 10, 2012 [Unpublished] ____________ Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges. ____________ Appellate Case: 12-1809 Page: 1 Date Filed: 09/10/2012 Entry ID: 3951035 PER CURIAM. In this civil forfeiture action, after claimant Kristin Dougherty filed a Federal Rule of Civil Procedure 12 motion to dismiss, the district court1 granted the government’s motion for voluntary dismissal without prejudice, and later denied Dougherty’s motion for costs, his motion to amend the dismissal to be with prejudice, and his motions for reconsideration. Dougherty appeals, and we affirm. First, because Dougherty had not yet filed an answer or summary judgment motion at the time that the government sought its voluntary dismissal, the dismissal operated as one under Federal Rule of Civil Procedure 41(a)(1)(A)(i) (dismissal by notice of plaintiff). Thus, the dismissal did not require a court order, and the court lacked discretion to dismiss the action with prejudice. See Fed. R. Civ. P. 41(a)(1)(B). Second, Dougherty was not a substantially prevailing party for purposes of the fee-shifting provision in 28 U.S.C. § 2465(b)(1)(A), because, among other reasons, a Rule 41(a)(1)(A)(i) voluntary dismissal without prejudice leaves the government free to refile against the property at issue. Accordingly, we affirm the district court’s orders denying costs, declining to amend the judgment to be with prejudice, and denying reconsideration. See 8th Cir. R. 47B. ______________________________ 1 The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri. -2- Appellate Case: 12-1809 Page: 2 Date Filed: 09/10/2012 Entry ID: 3951035

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