BROWN v. FL DEPT OF CORRECTIONS, et al

Filing 6

ORDER: 5 MOTION to Withdraw, construed as motion to voluntarily dismiss case is GRANTED. Claims against Defendants are DISMISSED WITHOUT PREJUDICE. Clerk instructed to make appropriate notation on docket and close file. Signed by MAGISTRATE JUDGE GARY R JONES on 12/12/2011. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
DAVID BROWN,
Plaintiff,
v.

CASE NO. 5:11-cv-364-MP-GRJ

FLORIDA DEPARTMENT
OF CORRECTIONS, and
FLORIDA DEPARTMENT
OF FINANCIAL,
Defendants.
____________________________ /
ORDER
Pending before the Court is Plaintiff’s Motion To Withdraw (Doc. 5), which the
Court construes as a motion to voluntarily dismiss the case pursuant to Rule
41(a)(1)(A)(i) of the Federal Rules of Civil Procedure.
Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), a plaintiff may voluntarily dismiss an
action without a court order by filing a notice of dismissal before the opposing party
serves either an answer or a motion for summary judgment. The effect of such a
voluntary dismissal by a plaintiff is that the dismissal is without prejudice, unless the
plaintiff has previously dismissed any federal or state court action based on or including
the same claim. FED . R. CIV. P. 41(a)(1)(B).
In this instance, the Defendants were never served and therefore neither
Defendant has filed an answer or a motion for summary judgment. Further, while
Plaintiff represented in his Complaint that he had filed an action in the Circuit Court of
the Second Judicial Circuit in and for Leon County, Florida dealing with the same or
similar facts/issues involved in this case a search of the Leon County Clerk of Court’s

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website reflects that Plaintiff’s state court case was transferred to Wakulla County
County. The docket for Plaintiff’s state court case in Wakulla County reflects the case
is still pending.
Accordingly, because the record does not reflect that Plaintiff previously
dismissed a federal or state court action based upon or including the same claim
Plaintiff’s request to dismiss this case without prejudice is due to be granted..
Upon due consideration, it is ORDERED that:
(1)

Plaintiff’s Motion To Withdraw (Doc. 5), construed as a motion to
voluntarily dismiss the case is GRANTED.

(2)

Plaintiff’s claims against the Defendants are DISMISSED WITHOUT
PREJUDICE.

(3)

The Clerk is instructed to make the appropriate notation on the docket
and close the file.

DONE AND ORDERED this 12th day of December, 2011.

s/ Gary R. Jones
GARY R. JONES
United States Magistrate Judge