Avoki v. Carolina Telco
Filing
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ORDER granting 38 Motion to Dismiss Without Prejudice. Signed by Magistrate Judge David Keesler on 1/5/17. (Pro se litigant served by US Mail.)(mga)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:16-CV-221-DCK
FRANCISCO AVOKI,
Plaintiff,
v.
CAROLINAS TELCO,
Defendant.
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ORDER
THIS MATTER IS BEFORE THE COURT on “Plaintiff’[s] Motion To Dismiss
Without Prejudice” (Document No. 38).
The parties have consented to Magistrate Judge
jurisdiction pursuant to 28 U.S.C. § 636(c), and this motion is ripe for disposition. Having
carefully considered the motion and the record, the undersigned will grant the motion.
Plaintiff Francisco Avoki (“Plaintiff” or “Avoki”), appearing pro se, initiated this action
with the filing of his “Complaint and Request of Jury Trial” (Document No. 1) on May 6, 2016.
On September 21, 2016, the parties consented to Magistrate Judge jurisdiction. (Document Nos.
20 and 21). A “Pretrial Order And Case Management Plan” (Document No. 25) issued on October
5, 2016.
“Plaintiff’s Motion To Dismiss Without Prejudice” (Document No. 38) was purportedly
signed on or about December 9, 2016, and then filed December 20, 2016. The motion seeks
voluntary dismissal pursuant to Fed.R.Civ.P. 41 (a). (Document No. 38). By the pending motion,
construed by the Clerk of Court as a “Notice Of Voluntary Dismissal,” Plaintiff seeks to withdraw
this lawsuit without prejudice due to health issues. (Document No. 38). Plaintiff’s concise
motion/notice reports that he suffered “with heart general failure” on or about December 3, 2016,
and was immediately transferred to Paris, France. Id.
A “Response By Defendant Carolina Telco Federal Credit Union To Plaintiff’s Notice Of
Voluntary Dismissal” (Document No. 39) was filed on January 4, 2017. In response, Defendant
simply states that it does not oppose the relief requested by Plaintiff. (Document No. 39).
The undersigned observes that since “Defendant’s Answer To Plaintiff’s Complaint”
(Document No. 12) was filed on July 21, 2016, any stipulation of dismissal required the signature
of all parties. See Fed.R.Civ.P. 41(a)(1)(A). However, the Rule also allows the Court to dismiss
an action “on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2). Considering all the
circumstances of this case, including that pro se Plaintiff is apparently receiving medical treatment
in France and requests dismissal without prejudice, and that Defendant does not oppose the
request, the undersigned finds good cause to allow this matter to be dismissed.
IT IS, THEREFORE, ORDERED that “Plaintiff’[s] Motion To Dismiss Without
Prejudice” (Document No. 38) is GRANTED, and this matter is hereby DISMISSED
WITHOUT PREJUDICE.
SO ORDERED.
Signed: January 5, 2017
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