Messer v. Potts et al (INMATE 3)

Filing 37

OPINION AND ORDER that: (1) Plaintiff's 34 Motion for Leave of Court to file a Motion to Dismiss under FRCP 41 is granted. (2) Plaintiff's 36 Motion for Voluntary Dismissal without prejudice pursuant to FRCP 41(a)(2) is granted. (3) This action is dismissed in its entirety without prejudice under FRCP 41(a)(2). The clerk of the court is DIRECTED to close this case. Signed by Honorable Judge Myron H. Thompson on 5/9/2018. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CECIL JAMES MESSER, JR.,
Plaintiff,
v.
DAVID POTTS, et al.,
Defendants.

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Civil Action No. 2:17cv08-MHT
[WO]

OPINION AND ORDER
Plaintiff has filed a motion for leave of court to file a motion to dismiss under Rule
41 of the Federal Rules of Civil Procedure, accompanied by a motion for voluntary
dismissal of this action without prejudice pursuant to Fed.R.Civ.P. 41(a)(2).    The court
concludes these motions are due to be granted.
Dismissal without prejudice pursuant to Rule 41(a)(2) at the request of plaintiff is
committed to the sound discretion of the district court, although in most cases a dismissal
should be granted absent clear legal prejudice to defendants. See McCants v. Ford Motor
Company, Inc., 781 F.2d 855, 856-57 (11th Cir. 1986).

Simple litigation costs,

inconvenience to defendants, and the prospect of a second or subsequent lawsuit do not
constitute clear legal prejudice. See id.; see also Durham v. Florida East Coast Railway
Company, 385 F.2d 366, 368-69 (5th Cir. 1967).
The court has reviewed the file in this case and determined that defendants have not
demonstrated the existence of clear legal prejudice. The court, therefore, concludes this
action should be dismissed without prejudice.

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Accordingly, it is ORDERED that:
(1) Plaintiff’s motion for leave of court to file a motion to dismiss under Fed.R.Civ.P
41 (Doc. # 34) is granted.
(2) Plaintiff’s motion for voluntary dismissal without prejudice pursuant to
Fed.R.Civ.P. 41(a)(2) (Doc. #36) is granted.
(3) This action is dismissed in its entirety without prejudice under Federal Rule of
Civil Procedure 41(a)(2).
The clerk of the court is DIRECTED to close this case.
DONE, this 9th day of May, 2018.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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