Nail et al v. Shipp et al

Filing 129

ORDER granting 98 MOTION to Withdraw opt-in Plaintiff Jason Brown as set out. Plaintiff Brown and Defendants are to bear their own costs. Signed by Magistrate Judge Sonja F. Bivins on 11/26/2018. (srd)

IN THE UNITED STATES DISCTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
APRIL NAIL, et al.,

)
)
)
)
) CIVIL ACTION NO. 17-CV-00195-KD-B
)
)
)
)

Plaintiffs,
vs.
ROBERT M. SHIPP, et al.,
Defendants.

ORDER
This action is before the Court on opt-in Plaintiff Jason
Brown’s Motion to Voluntarily Withdraw Opt-in Consent to join
this

lawsuit

permission

(Doc.

to

98).

voluntarily

In

his

withdraw

motion,
from

the

Brown

requests

instant

lawsuit

which arises under the Fair Labor Standards Act.
The record reflects that on January 3, 2018, Jason Brown
filed a Consent to Sue Notice (Doc. 85-1 at 2), and subsequent
thereto,

2018,

requesting

permission to voluntarily withdraw from this case.

The FLSA

does

he

not

filed

provide

unilaterally
however,
plaintiffs

the

this motion

a

method

withdraw

once

Eleventh

[referred

to

on

whereby
they

Circuit
in

March

the

an

have
has
FLSA

15,

opt-in

joined

plaintiff

the

instructed
as

‘party

may

litigation;

that

“opt-in

plaintiffs’]

should have the same status in relation to the claims of the
lawsuit as do the named plaintiffs.”

Prickett v. DeKalb, 349

F.3d 1294, 1297 (11th Cir. 2003); see also Mancuso v. Fla. Metro

Univ., Inc., 2010 U.S. Dist. LEXIS 151565, *1, 2010 WL 11549395,
*1 (S.D. Fla. Sept. 17, 2010).
Federal

Rule

of

Civil

Procedure

41(a)(1)

authorizes

a

plaintiff to voluntary dismiss his claims only if he files a
notice of dismissal before the defendant answers or moves for
summary judgment.

Once a defendant has served an answer (as

occurred here) or filed a summary judgment motion, a plaintiff
may voluntarily dismiss the action only “only by court order, on
terms

that

41(a)(2).

the
A

court

court

considers

“enjoys

proper.”

broad

Fed.

discretion

R.

in

Civ.

P.

determining

whether to allow a voluntary dismissal under Rule 41(a)(2).”
Pontenberg
(11th

v.

Cir.

Boston

2001).

Scientific,
“[I]n

most

Corp.,
cases

a

252

F.3d

dismissal

1253,

1255

should

be

granted unless the defendant will suffer clear legal prejudice,
other

than

result.”

the

mere

prospect

of

a

subsequent

as

a

McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856-57

(11th Cir. 1986) (emphasis in original).
broad

lawsuit,

equitable

discretion

under

Rule

“In exercising its

41(a)(2),

the

district

court must weigh the relevant equities and do justice between
the parties in each case, imposing such costs and attaching such
conditions

to

the

dismissal

as

are

deemed

appropriate.”

Pontenberg, 252 F.3d at 1256 (quoting McCants, 781 F.2d at 857)
(internal quotations marks omitted).

2

In this case, Plaintiff Brown sought voluntary dismissal a
mere two months after filing his consent notice in January 2018.
Since

that

time,

none

of

the

Defendants

have

voiced

any

opposition to Brown’s voluntary dismissal request, and none have
counterclaims

pending.

Moreover,

it

does

not

appear

that

Brown’s requested dismissal will have any impact on the claims
of the remaining Plaintiffs.

Accordingly, the undersigned finds

that, under the circumstances, Plaintiff Brown’s request is due
to be and hereby is GRANTED pursuant to Fed.R.Civ.P. 41(a)(2).
Plaintiff Brown and Defendants are to bear their own costs.
DONE this the 26th day of November, 2018.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

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