Spreadbury v. Bitterroot Public Library et al

Filing 307

ORDER granting 304 Motion to Dismiss Signed by Jeremiah C. Lynch on 5/31/2012. (TCL, ) Modified on 6/1/2012 to reflect copy to Spreadbury this date (APP, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
MICHAEL E. SPREADBURY,

CV 11-64-M-DWM-JCL

Plaintiff,
vs.
ORDER
BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON,
LEE ENTERPRISES, INC., and
BOONE KARLBERG, P.C.,
DR. ROBERT BROPHY, TRISTA
SMITH, NANSU RODDY,
JERRY STEELE, STEVE SNAVELY,
STEVEN BRUNER-MURPHY,
RYAN OSTER, KENNETH S. BELL,
and JENNIFER LINT
Defendants.
_____________________________________________
Plaintiff Michael Spreadbury moves to dismiss this entire action under
authority of Fed. R. Civ. P. 41(a)(1)(A)(i). Spreadbury states that all Defendants
have been unwilling to agree to terms of a settlement agreement that he proposed.
Rule 41(a)(1)(A)(i), however, is not the proper authority for Spreadbury’s
motion. A dismissal under that Rule is permitted only if it is filed before any
opposing party has filed an answer to the complaint, or a motion for summary
judgment. The circumstances of this case do not satisfy Rule 41(a)(1)(A)(i).
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Instead, Fed. R. Civ. P. 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.” Because Spreadbury requests dismissal of this action, the Court deems it
appropriate to construe his motion as filed under Rule 41(a)(2).
The Court has broad discretion to dismiss an action at the plaintiff’s request
under Rule 41, and on terms the Court deems proper. Hargis v. Foster, 312 F.3d
404, 412 (9th Cir. 2002). This discretion includes the authority to dismiss an
action with prejudice even if the plaintiff does not specify in the motion whether
the plaintiff is seeking dismissal with or without prejudice. Id.
Here, Spreadbury does not indicate in his motion whether he requests
dismissal with or without prejudice. In response to the motion, Defendant Lee
Enterprises, Inc. — the sole remaining defendant — states it does not oppose the
dismissal provided it is with prejudice.1
Under the circumstances of this case, given the parties’ extensive litigation
of Spreadbury’s claims, the multiple summary judgment rulings, and the previous

1

Spreadbury’s motion to dismiss is moot as to all other Defendants in this
action because all of Spreadbury’s claims against the other Defendants have
previously been dismissed, and Judgment has been entered on May 30, 2012, in
favor of Defendants Bitterroot Public Library, City of Hamilton, Dr. Robert
Brophy, Trista Smith, Nansu Roddy, Jerry Steele, Steve Snavely, Steven BrunerMurphy, Ryan Oster, Kenneth Bell and Jennifer Lint.
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dismissal of the majority of Spreadbury’s claims, the Court deems it appropriate to
exercise its discretion to impose dismissal with prejudice as a term of the
dismissal. THEREFORE, IT IS HEREBY ORDERED that Spreadbury’s
Second Motion for Voluntary Dismissal is GRANTED, and all of Spreadbury’s
remaining claims are DISMISSED with prejudice under Fed. R. Civ. P. 41(a)(2).
This Order, however, is subject to reconsideration if, on or before June 7, 2012,
Spreadbury either (1) files a notice advising the Court that he requests an
opportunity to be heard as to why the dismissal should not be with prejudice, or
(2) withdraws his motion to dismiss.
DATED this 31st day of May, 2012

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

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