United States v. Kristin L. Dougherty

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Michael J. Melloy and Bobby E. Shepherd (UNPUBLISHED) [3951035] [12-1809]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1809
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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
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: August 30, 2012
Filed: September 10, 2012
[Unpublished]
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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.
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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.
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1

The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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Appellate Case: 12-1809

Page: 2

Date Filed: 09/10/2012 Entry ID: 3951035