McIntosh v. KCA Corporation et al

Filing 57

ORDER: Plaintiff's 56 Motion to Dismiss is ALLOWED and this case is DISMISSED. In light of this Order, the remaining pending motions in this case are DENIED as MOOT [D.E. 38, 45, 46, 48, 53, and 54]. Signed by US District Judge Terrence W. Boyle on 11/10/2011. A copy of the order was mailed to the pro se plaintiff to his address of record. (Sawyer, D.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO.5:08-CV-625-BO ROBERT GLENN MCINTOSH, III Plaintiff, v. ) ) ) ) ) ) ORDER KCA CORPORATION, RICHARD ) SIMMONS, ROBERT BARNES, MARILYN STEPHENS, AND GREGORY) RAYAS, ) Defendants. ) This matter is before the Court on Plaintiffs Motion to Dismiss [DE 56]. Defendants did not respond to the Motion, and it is now ripe for adjudication. For the reasons discussed below, Plaintiffs Motion to Dismiss is ALLOWED. The action is DISMISSED WITHOUT PREJUDICE. BACKGROUND On December 22, 2008, Plaintiff Robert Glenn McIntosh, III, filed suit against Defendants, his employer and supervisors, alleging a "sexually hostile environment" in violation of Title VII ofthe Civil Rights Act of 1964, as amended. Mr. McIntosh specifically alleged that he was subjected to "gay jokes [and] slurs" and was called "Roberta" at work [DE 1-2]. He also alleged that he was subjected to retaliation after bringing his grievances to the attention of his supervisors. Defendants denied the allegations and the case proceeded to discovery [DE 29]. On May 6,2011, Defendants filed a Motion to Compel Discovery [DE 38]. Mr. McIntosli responded with a Motion For Extension of Time to Complete Discovery [DE 45] and a Motion to Stay Discovery [DE 46]. Defendants then filed a Motion to Continue Time to File Dispositive Motions [DE 48], a Second Motion to Compel Discovery [DE 53], and a Motion for Summary Judgment [DE 54]. On September 12,2011, before the Court ruled on the above pending motions, Mr. McIntosh filed the instant Motion [DE 56]. Defendants did not respond in opposition. DISCUSSION Motions for voluntary dismissal are evaluated pursuant to Federal Rule of Civil Procedure 41. Because Defendants have already filed an answer [DE 29] and a motion for summary judgment rDE 54], this action may be dismissed only by court order, on terms that the Court considers proper. Fed. R. Civ. P. 41(a)(2). Generally, a plaintiffs motion for voluntary dismissal without prejudice should not be denied absent unfair prejudice to the defendant. Davis v. USX Corp. , 819 F.2d 1270,1273 (4th Cir. 1987). In evaluating motions for voluntary dismissal without prejudice, a district court evaluates: (1) the opposing party's effort and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the movant; (3) insufficient explanation of the need for a dismissal; and (4) the present stage of the litigation. Gross v. Spies, No. 96-2146, 1998 WL 8006, at *5 (4th Cir. Jan. 13, 1998). These factors are not exclusive, however, and any other relevant factors should be considered by the district court depending on the circumstances of the case. Id. In this case, the Court finds that dismissal without prejudice is appropriate. At this time, only limited discovery has taken place. Although Defendants have alleged that Mr. McIntosh lacked diligence in responding to discovery requests and have filed a motion for summary judgment, they have not filed a response in opposition to Mr. McIntosh's request to dismiss without prejudice, and have not explained why dismissal without prejudice would unfairly burden them. Mr. McIntosh has asserted in his Motion that he is "medically disabled...homeless with no financial and legal help" and that "it is medically impossible to precede [sic] with the case" [DE 56]. Because Defendants have not alleged that Mr. McIntosh has pursued and dismissed this case in any other federal or state court action, and because the Court does not perceive that undue prejudice will accrue to Defendants as a result of a dismissal without prejudice, Mr. McIntosh's Motion to Dismiss is allowed. CONCLUSION For the foregoing reasons, Plaintiffs Motion to Dismiss [DE 56] is ALLOWED and this case is DISMISSED. In light of this Order, the remaining pending motions in this case are DENIED as MOOT [DE 38, 45, 46,48,53,54]. SO ORDERED. This 112 day of November, 2011. y~~ TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE

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