Carver v. Raleigh Police Department et al

Filing 22

ORDER regarding DE 20 what the court construes as a notice of voluntary dismissal without prejudice: The court ALLOWS plaintiffs motion to dismiss. Accordingly, this matter is hereby DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(a)(2) of the Fed eral Rules of Civil Procedure. Defendants motion to dismiss [DE 17] is DENIED AS MOOT. Signed by District Judge Terrence W. Boyle on 8/14/2015. Copies of order sent to Pro Se plaintiff via US Mail to 1320 Mockingbird Lane, Durham NC 27703. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:12-CV-658-BO
PHILLIP DWAYNE CARVER,
Plaintiff,
v.
OFFICER BC BRACEY and OFFICER
KARCHER,
Defendants.

)
)
)
)
)
)
)
)
)

ORDER

This matter is before the Court on prose plaintiffPhillip Dwayne Carver's filing of what
the Court construes as a notice of voluntary dismissal without prejudice [DE 20]. Federal Rule of
Civil Procedure 41(a) governs voluntary dismissals of federal actions. Bridge Oil, Ltd. v. Green

Pac. AIS, 321 Fed. App'x 244, 245 (4th Cir. 2008). A plaintiff may dismiss an action without a
court order by filing: "(i) a notice of dismissal before the opposing party serves either an answer
or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who
have appeared." FED. R. Crv. P. 41(a)(l). The Federal Rules of Civil Procedure are given their
plain meaning by the Court. Marex Titanic, Inc. v. Wrecked and Abandoned Vessel, 2 F.3d 544,
546 (4th Cir. 1993) (citation omitted). "If the plaintiff files a notice of dismissal before the
adverse party serves it with 'an answer or a motion for summary judgment', the dismissal is
available as a matter of unconditional right." !d. (citation omitted). A motion to dismiss under
Rule 12 does not terminate the right of dismissal by notice unless formally converted into a
motion for summary judgment under Rule 56. Finley Lines Joint Protective Bd. Unit 200 v.

Norfolk Southern Corp., 109 F.3d 993, 996 (4th Cir. 1997) (citing 9 Charles Alan Wright &
Arthur Miller, Federal Practice *Procedure § 2363, at 259 (2d. ed. 1995). The remaining
defendants, Raleigh Police Officers B.C. Bracey and E.J. Karcher, have filed a motion to dismiss

that has not been formally converted into a motion for summary judgment. Accordingly,
voluntary dismissal is available to plaintiff.
When deciding a motion for voluntary dismissal, a court must consider, inter alia, the
opposing party's efforts and expense, any excessive delay or lack of diligence on the part of the
plaintiff, and whether the explanation for dismissal is sufficient. Nesari v. Taylor, 806 F.
Supp.2d 848, 861 (E.D.Va. 2011). Here, defendants admit that the case is at an early stage.
Plaintiffs explanation for dismissal-that he has liver cancer-is legitimate. Having considered
the relevant factors, that defendants admit the case is at an early stage and do not appear to
oppose plaintiffs motion, and that no counterclaim, answer, or motion for summary judgment
has been filed, the Court ALLOWS plaintiffs motion to dismiss. [DE 20]. Rather than impose
limitations or extension on how and when plaintiff can re-file this suit, the Court instead notes
that the substantive law of the forum jurisdiction will control any re-filed action.
Accordingly, this matter is hereby DISMISSED WITHOUT PREJUDICE pursuant to
Rule 41(a)(2) ofthe Federal Rules ofCivil Procedure. Defendants' motion to dismiss [DE 17] is
DENIED AS MOOT.
SO ORDERED, this the

Ji_ day of August, 2015.
T RRENCE W. BOYLE
UNITED STATES DISTRICT

2