Hernandez v. Phelps et al

Filing 127

MEMORANDUM ORDER; 116 MOTION to Produce filed by Robert G. Hernandez is DENIED as moot; 113 MOTION to Compel filed by Robert G. Hernandez is DENIED as moot; 122 MOTION to Dismiss filed by Robert G. Hernandez is GRANTED; Plainitff shall show cause within 30 days from the date of this order why the case should not be dismissed with prejudice; Show Cause Response due by 9/9/2013; See order for additional information. Signed by Judge Noel L. Hillman on 8/9/2013. (bkb)

Hernandez v. Donovan et al

Doc. 127

UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE

ROBERT G. HERNANDEZ,
Plaintiff,
v.
CPL. R. DONOVAN, et al.,
Defendants.

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CIVIL NO. 10-726(NLH)(JS)

MEMORANDUM ORDER

HILLMAN, District Judge
At Camden, New Jersey, this
IT IS ORDERED that:

9th

day of August, 2013,

(1) Plaintiff's request to withdraw

civil complaint, construed as a motion for voluntary dismissal
(Doc. No. 122) is GRANTED; (2) the remaining pending motions
(D.I. 113, 116) are DENIED as moot; (3) Plaintiff shall SHOW
CAUSE within thirty (30) days from the date of this Order why the
case should not be dismissed with prejudice; and (4) the Court
holds in abeyance dismissal of the case pending Plaintiff’s
response to the Show Cause Order; for the reasons that follow:
Presently before the Court is Plaintiff’s motion to
voluntarily dismiss.

Due to the procedural posture of this

matter, any dismissal would be governed by Fed. R. Civ. P.
41(a)(2).

Rule 41(a)(1) provides for voluntary dismissal by the

Plaintiff without a court order before the opposing party serves
either an answer or a motion for summary judgment.

Procedurally,

Dockets.Justia.com

Rule 41(a)(1) is not available to Plaintiff because Defendants
have answered the complaint.
Rule 41(a)(2) states that “except as provided in Rule
41(a)(1), an action may be dismissed at the plaintiff's request
only by court order, on terms that the court considers proper
.... Unless the order states otherwise, a dismissal under this
paragraph (2) is without prejudice.”

Fed. R. Civ. P. 41(a).

The motion is construed as a request for voluntary dismissal
pursuant to Rule 41(a)(2) and requires a court order.
Due to the extent to which this matter has been litigated,
and taking into consideration the judicial and other legal
resources that have been invested to this point, it appears that
dismissal with prejudice would be appropriate.

See e.g.,

Hoffman-La Roche Inc. v. Genpharm Inc., 50 F. Supp. 2d 367, 371
(D.N.J. 1999).

Factors considered in deciding whether to grant

the dismissal with prejudice include: (1) the excessive and
duplicative expense of a second litigation; (2) the effort and
expense incurred by the defendant in preparing for trial; (3) the
extent to which the current suit has progressed; (4) the
plaintiff’s diligence in bringing the motion to voluntarily
dismiss and his explanation therefore; and (5) the pendency of a
dispositive motion by the non-moving party.

See Dodge-Regupol,

Inc. v. RB Rubber Products, Inc., 585 F. Supp. 2d 645, 652 (M.D.
Pa. 2008).
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Should the Court dismiss this matter without prejudice and
Plaintiff resurrect it at some unspecified point in the future,
it would appear that Defendants would be significantly prejudiced
by the excessive and duplicative expense of a second litigation.
In addition, it is clear from the procedural history in this
matter that significant judicial and other legal resources have
already been expended on this litigation.
After four years of litigation, Plaintiff no longer wishes
to pursue this action.

Ordinarily, the Court would dismiss the

case with prejudice and, it appears, that is what Plaintiff
seeks.

However, given Plaintiff’s pro se status and, out of an

abundance of caution, Plaintiff is ordered to show cause, within
thirty days from the date of this order, why this case should not
be dismissed with prejudice.

If the Plaintiff does not respond

within the specified time period, the Clerk of the Court is
directed to mark the matter CLOSED.

/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey

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