Phipps v. Grady et al

Filing 23

ORDER GRANTING 22 Plaintiff's Motion to Dismiss. The clerk is directed to enter judgment accordingly. Signed by US District Judge Terrence W. Boyle on 5/14/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:13-CV-95-BO
VIRGINIUS R. PHIPPS,
Plaintiff,
v.

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ORDER

BENJAMIN L. GRADY; DALE
FAIRCLOTH, individually and in his
)
official capacity; STRATTON F. STOKES, )
individually and in his official capacity; C.L.)
JOHNSON, individually and in his official )
capacity; BLAKE WALLACE, individually )
and in his official capacity as the SHERIFF )
OF DUPLIN COUNTY, NORTH
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CAROLINA; THE DUPLIN COUNTY
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NORTH CAROLINA SHERIFF'S OFFICE;)
and DUPLIN COUNTY NORTH
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CAROLINA,
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Defendants.
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This cause comes before the Court on two motions to dismiss by defendants and
plaintiffs motion to dismiss this action without prejudice pursuant to Rule 41(a)(2) of the
Federal Rules of Civil Procedure. Plaintiff contends that he was unable to obtain valid service of
process on several defendants and wishes to cure that defect by dismissing this suit and refiling
within the appropriate time and statute of limitations. Because defendant Grady has filed an
answer to plaintiffs complaint [DE 19], plaintiff may not voluntarily dismiss this action without
an order of the Court. Fed. R. Civ. P. 41(a)(1)(A)(i).
A plaintiffs motion to dismiss under Rule 41(a)(2) "should not be denied absent
substantial prejudice to the defendant." Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir.
1986). In deciding whether to allow a plaintiffs motion to dismiss under Rule 41(a)(2), the

Court considers several factors including the opposing party's effort and expense in preparing for
trial, whether there is sufficient explanation for the need of the dismissal, and the present stage of
the litigation. Phillips USA, Inc. v. Alljlex USA, Inc., 77 F.3d 354, 358 (1Oth Cir. 1996).
As this matter is in the early stages of proceeding, the opposing parties would not have
expended effort or expense in preparing for trial, and plaintiff has provided a sufficient
explanation of the need for dismissal, the Court finds no substantial prejudice to defendants and
thus GRANTS plaintiffs motion to dismiss this action without prejudice. [DE 22]. The clerk is
DIRECTED to enter judgment accordingly.
SO ORDERED, this 1!}_ day of May, 2014.

TERRENCE W. BOYLE
UNITED STATES DISTRICT J

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