Hendricks et al v. Kasich et al

Filing 43

REPORT AND RECOMMENDATIONS re 42 MOTION to Dismiss filed by Benjamin Hendricks. Objections to R&R due by 8/11/2014. Signed by Magistrate Judge Terence P Kemp on 7/24/2014. (agm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Benjamin Hendricks,

:

Plaintiff,

:

v.

:

Case No. 2:12-cv-729

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

John Kasich, et al.,
Defendants.

:

REPORT AND RECOMMENDATION
This matter is before the Court to consider plaintiff
Benjamin Hendricks’s motion to voluntarily dismiss the complaint
without prejudice.

Defendants have not responded to this motion

and it stands as unopposed.

For the following reasons, the Court

will recommend that Mr. Hendricks’s motion be granted.
I.
The Court’s docket reflects that defendants have filed an
answer in this case and the Court construes Mr. Hendricks’s
motion as brought pursuant to Fed.R.Civ.P. 41(a)(2).

That Rule

provides, in relevant part:
By Court Order; Effect. 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. ... Unless the order states
otherwise, a dismissal under this paragraph (2) is
without prejudice.
The decision to grant or deny a voluntary dismissal is
committed to the sound discretion of the trial court.

Grover by

Grover v. Eli Lilly and Co., 33 F.3d 716, 718 (6th Cir. 1994).
Generally, voluntary dismissal without prejudice should be
granted unless the defendant shows that a dismissal will result
in plain legal prejudice.

Id.

The mere prospect of a second

lawsuit does not constitute prejudice.

Id.

Rather, as the

Court of Appeals explained in Grover:
[i]n determining whether a defendant will suffer plain
legal prejudice, a court should consider such factors
as the defendant’s effort and expense of preparation
for trial, excessive delay and lack of diligence on the
part of the plaintiff in prosecuting the action,,
insufficient explanation for the need to take a
dismissal, and whether a motion for summary judgment
has been filed by the defendant.
Id.; see also Bridgeport Music, Inc. v. Universal-MCA Music Pub.,
Inc., 583 F.3d 948 (6th Cir. 2009).
II.
Here, Mr. Hendricks has been actively prosecuting this case
although the case, as a whole, remains in its early stages.

To

date, a scheduling order has not been issued, discovery has not
been undertaken, and summary judgment motions have not been
filed.

More significantly, defendants have not filed a response

indicating any prejudice they will suffer as a result of a
voluntary dismissal.

Consequently, applying the above standards

to this case, the Court recommends that Mr. Hendricks’s motion
for voluntary dismissal be granted.
III.
For the reasons set forth above, the Court recommends that
the motion for voluntary dismissal without prejudice (Doc. 42) be
granted.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or

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A judge

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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