Evans v. Fri et al

Filing 43

DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 42 ). Signed by Judge Timothy S. Black on 3/28/2016. (mr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES A. EVANS,
Plaintiff,
vs.
GARTH FRI, et al.,
Defendants.

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Case No. 1:15-cv-161
Judge Timothy S. Black
Magistrate Judge Stephanie K. Bowman

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 42)
This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings filed with this Court, and, on February 29, 2016,
submitted a Report and Recommendations. (Doc. 42). No objections were filed.
The Magistrate Judge recommends that the Court construe Plaintiff’s pro se
motion “To Discontinue Progress of the Complaint” (Doc. 40) as a notice of voluntary
dismissal under Fed. R. Civ. P. 41(a)(1). Plaintiff may dismiss by way of a notice under
that rule “at any time before service by the adverse party of an answer or of a motion for
summary judgment.” Fed. R. Civ. P. 41(a)(1). Here, Defendants Messer, Fri, Evans, and

Hart filed an answer on May 27, 2015. (Doc. 20). 1 Accordingly, Plaintiff could not
voluntarily dismiss his claims with a Rule 41(a)(1) notice.
The Court construes Plaintiff’s motion (Doc. 40) as a motion to dismiss pursuant
to Fed. R. Civ. P. 41(a)(2). According to that provision:
Except as provided in Rule 41(a)(1), an action may be dismissed at the
plaintiff’s request only by court order, on terms that the court considers
proper. If a defendant has pleaded a counterclaim before being served with
the plaintiff’s motion to dismiss, the action may be dismissed over the
defendant’s objection only if the counterclaim can remain pending for
independent adjudication. Unless the order states otherwise, a dismissal
under this paragraph (2) is without prejudice.
Here, no counterclaims have been pled. (See Doc. 20). Further, Defendants “have no
objections to a dismissal entry being journalized by the Court on whatever terms the
Court deems most appropriate, either with prejudice, or alternatively, without prejudice.”
(Doc. 41 at 2). The Court finds that a dismissal without prejudice is most appropriate.
As required by 29 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo
all of the filings in this matter. Upon consideration of the foregoing, the Court does
determine that the Report and Recommendations (Doc. 42) should be and is hereby
ADOPTED, on the grounds set forth herein.

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Subsequently, the Court clarified that Plaintiff’s claims against Defendant Evans were
dismissed. (See Doc. 27).
2

For the foregoing reasons:
1. Plaintiff’s motion to discontinue (Doc. 40) is CONSTRUED as a motion for
voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(2);
2. This civil action is DISMISSED WITHOUT PREDUCICE; and
3. The Clerk shall enter judgment accordingly, whereupon this civil action is
TERMINATED in this Court.
IT IS SO ORDERED.
Date: 3/28/2016

_/s/Timothy S. Black_____________
Timothy S. Black
United States District Judge

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