Abbott v. Schneider National Carriers, Inc. et al

Filing 76

ORDER granting 65 Motion to Dismiss pursuant to FRCP 41(a)(2); case dismissed without prejudice. Signed by Honorable Jimm Larry Hendren on May 20, 2009. (cnn)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION EULUS ABBOTT, an Individual and Personal Representative of the Estate of Michael Abbott V. Civil No. 08-1070 DEFENDANTS

PLAINTIFF

SCHNEIDER NATIONAL CARRIERS, INC., et al. ORDER

Currently before the Court is the plaintiff's Motion to Dismiss Without Prejudice (Doc. 65). The Court, being well

and sufficiently advised, finds and orders as follows with respect thereto: 1. Plaintiff instituted this action individually and as

personal representative of the estate of Michael Abbott, his son. Plaintiff seeks damages resulting from the death of his

son in a motor vehicle accident. 2. The defendants have moved for summary judgment,

arguing that, under Arkansas law, the complaint originating this action is a "nullity," because the plaintiff had not been appointed personal representative of his son's estate when the complaint was filed. In response, plaintiff concedes that "the best way

forward in this case" is to dismiss this action, as he has now been appointed personal representative of his son's estate and he can properly re-file the complaint in that capacity.

Plaintiff, therefore, moves to dismiss this action without prejudice. The defendants respond that the Court should grant their motion for summary judgment and dismiss this action with prejudice. 3. to the The decision to grant a voluntary dismissal is left discretion of the district court based on its

evaluation of factors such as the reasons for seeking the dismissal and whether the dismissal will prejudice the

defendants. Cir. 2005).

See Cahalan v. Rohan, 423 F.3d 815, 818-19 (8th Plaintiff has legitimate grounds for seeking to

dismiss this matter ­ to correct a technical defect that would otherwise preclude him from pursuing his cause of action. Further, it does not appear that the defendants will be prejudiced by the dismissal. To the extent the defendants

might incur any duplicative costs and expenses caused by the re-filing of the action, the defendants may petition the Court to consider awarding the Court them such costs and expenses. should be

Accordingly,

finds

that

plaintiff

permitted to voluntarily dismiss this action. 4. Based on the foregoing, plaintiff's Motion to

Dismiss Without Prejudice (Doc. 65) is GRANTED and this action is hereby DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(a)(2). DENIED as moot. All other pending motions are

IT IS SO ORDERED this 20th day of May, 2009.

/s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE