Chasteen v. Johnson et al

Filing 112

REPORT AND RECOMMENDATION it is recommended that re 106 motion to voluntarily dismiss the action be GRANTED. Objections to R&R due by 4/15/2013. Signed by Magistrate Judge Norah McCann King on 3/27/13. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ADAM CHASTEEN,
Case No. 2:12-cv-229
Judge Marbley
Magistrate Judge King

Plaintiff,
v.
ROD JOHNSON, et al.,
Defendants.

REPORT AND RECOMMENDATION

Plaintiff has filed a motion to voluntarily dismiss the action
without prejudice pursuant to Fed. R. Civ. P. 41(a). Doc. No. 106.
Defendants

oppose

the

motion.

Doc.

No.

109.

Although

the

Court

provided plaintiff the opportunity to reply in support of the motion,
Doc. No. 100, there has been no reply.
Plaintiff,
assistance

of

a

former

counsel,

state

asks

prisoner

leave

to

proceeding

dismiss

the

without

action

the

without

prejudice “so that he may vigorously continue to attempt to retain
counsel who can adequately plead the facts of this case, name and
serve

the

proper

defendants,

and

who

has

the

pursue relief for damages incurred in this case.”

means

to

diligently

Doc. No. 106, p. 3.

He also contends that dismissal of the action should not be predicated
on any financial condition because of his indigent status.

Id. at 5.

Once an answer or motion for summary judgment has been filed, a
plaintiff may voluntarily dismiss an action only upon stipulation or
“by court order, on terms that the court considers proper.”
Civ.

P.

41(a)(2).

A

court

is

vested
1 

with

broad

Fed. R.

discretion

in

considering a motion to voluntarily dismiss and may fashion a remedy
so as to avoid prejudice to other parties.

Grover by Grover v. Eli

Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994).

The primary purpose of

the required prior court approval is to protect a party from unfair
prejudice.

Summerville

v.

Ross/Abbott

Laboratories,

187

F.3d

638

(table), 1999 U.S. App. LEXIS 21009, 1999 WL 623786, at *17 (6th Cir.
1999).

The decision to permit a voluntary dismissal is improper only

where a defendant would suffer “plain legal prejudice” as a result of
the dismissal without prejudice.

Grover, 33 F.3d at 718.

However, such prejudice does not result from the mere prospect of
a second lawsuit.
for

the

Sixth

determination

Id.

In Grover, the United States Court of Appeals

Circuit

whether

identified

plain

legal

four

factors

prejudice

will

relevant
result

to

the

from

the

voluntary dismissal: (1) the amount of time, effort and expense the
defendant has incurred in trial preparation; (2) any excessive delay
and lack of diligence on the part of the plaintiff in prosecuting the
action; (3) insufficient explanation for the need to dismiss; and (4)
whether a defendant has filed a motion for summary judgment.

Id.

Defendants contend that the grant of plaintiff’s motion will work
to their prejudice.
motions

to

defendants.

dismiss

Defendants specifically refer to the pending
as

well

as

other

filings

made

on

behalf

of

Defendants also complain that plaintiff has not been

diligent in prosecuting the action, particularly as it relates to the
issue of service of process, and has not adequately explained his
request

to

voluntarily

dismiss

the

2 

action.

Should

the

motion

be

granted,

defendants

ask

that

the

grant

be

delayed

until

after

resolution of the pending motions to dismiss or, at a minimum, should
be conditioned on the payment of defendants’ fees and costs. Finally,
defendants ask that any dismissal be with prejudice. Doc. No. 109.
The Court concludes that defendants will not be so prejudiced by
the

voluntary

dismissal

plaintiff’s motion.

of

the

action

as

to

warrant

denial

of

Plaintiff’s interest in securing the assistance

of counsel in any future prosecution of the action is, in the view of
this Court, a substantial justification for the requested dismissal
without prejudice.
prosecuting

the

Moreover, any delay on the part of plaintiff in

action,

particularly

as

it

relates

to

service

of

process or the failure to respond to the pending motions to dismiss,
will

not

defenses

be

aggravated

available

to

by

the

grant

defendants

of

at

plaintiff’s

this

available to them in any re-filed action.

motion;

juncture

will

any
remain

Finally, the expense and

inconvenience associated with any future re-filing of the action is
adequately

addressed

by

Rule

41(d)

of

the

Federal

Rules

of

Civil

Procedure.1
It

is

voluntarily

therefore
dismiss

the

RECOMMENDED
action,

that

Doc.

No.

plaintiff’s
106,

be

motion

GRANTED

on

to
the

condition that, should plaintiff re-file the action, he be required to
reimburse

defendants

for

the

expenses

incurred

by

defendants

connection with the dismissal and re-filing of the action.

1

 “If a plaintiff who previously dismissed an action in any court files an
action based on or including the same claim against the same defendant, the
court: (1) may order the plaintiff to pay all or part of the costs of that
previous action; and (2) may stay the proceedings until the plaintiff has
complied.”

3 

in

A

preliminary

pretrial

conference

is

currently

scheduled

for

April 3, 2013.

In light of the recommendation that plaintiff’s motion

to

dismiss

voluntarily

VACATED

but

will

be

the

action

rescheduled

be

granted,

should

that

conference

plaintiff’s

motion

is
to

voluntarily dismiss the action be denied.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

___s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
March 27, 2013

4