U.S Commodity Futures Trading Commission v. Kastle & Hawke, Inc. et al
ORDER granting 46 Motion to Dismiss case without prejudice. Case is CLOSED. Signed by Judge James I. Cohn on 11/23/2011. (awe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-60674-CIV-COHN/SELTZER
U.S. COMMODITY FUTURES
KASTLE & HAWKE, INC.,
JAMES A. WARD, and
NATHANIEL R. WALKER,
ORDER OF DISMISSAL WITHOUT PREJUDICE
THIS CAUSE is before the Court upon Plaintiff U.S. Commodity Futures Trading
Commission’s Motion to Dismiss without Prejudice its Action Against Kastle & Hawke,
Inc., James A. Ward, and Nathaniel R. Walker [DE 46]. The Court has considered the
motion and the record in this case, and is otherwise fully advised in the premises.
Plaintiff seeks dismissal without prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(2).1 Rule 41(a)(2) provides that “an action may be dismissed at the
plaintiff’s request only by court order, on terms that the court considers proper.” Fed. R.
Civ. P. 41(a)(2). “Unless the order states otherwise, a dismissal under this paragraph
(2) is without prejudice.” Id.
“In exercising its ‘broad equitable discretion under Rule 41(a)(2),’ the district
court must ‘weigh the relevant equities and do justice between the parties in each
case.’” Pontenberg v. Boston Scientific Corp., 252 F.3d 1253, 1256 (11th Cir. 2001)
Dismissal under Rule 41(a)(1) is not available here because Defendant
Walker has served an Answer [DE 22], see Fed. R. Civ. P. 41(a)(1)(A)(i), and the
parties have not submitted a stipulation of dismissal signed by all parties who have
appeared, see Fed. R. Civ. P. 41(a)(1)(A)(ii).
(quoting McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857 (11th Cir. 1986)). “The
crucial question to be determined is, would the defendant lose any substantial right by
the dismissal.” Pontenberg, 252 F.3d at 1255. “[I]n most cases a dismissal should be
granted unless the defendant will suffer clear legal prejudice, other than the mere
prospect of a subsequent lawsuit, as a result.” McCants, 781 F.2d at 857 (emphasis
Here, there is no indication that Defendants would lose any substantial right or
suffer clear legal prejudice if this action is dismissed. Importantly, Defendant Walker,
the only Defendant who has appeared, does not object to dismissal without prejudice.
See Mot. at 3, 4. Therefore, the Court finds good cause to dismiss this action without
prejudice. Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion to Dismiss without Prejudice
its Action Against Kastle & Hawke, Inc., James A. Ward, and Nathaniel R. Walker [DE
46] is GRANTED. All claims in the above-captioned action are DISMISSED without
prejudice. It is further
ORDERED AND ADJUDGED that any pending motions are DENIED as moot,
and the Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 23rd day of November, 2011.
Copies provided to:
Counsel of record via CM/ECF
Pro se parties via CM/ECF regular mail
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