Cathcart v. Scott et al

Filing 28

ORDER granting in part 27 Plaintiff's Motion to Stay Proceedings and for Leave to File Amended Complaint or, in the Alternative, for Voluntary Dismissal Without Prejudice. This case is dismissed without prejudice. Signed by Judge Gregory L Frost on 11/18/13. (sem1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LARRY D. CATHCART, JR.,
Plaintiff,
Case No. 2:13-cv-502
JUDGE GREGORY L. FROST
Magistrate Judge Norah McCann King

v.
SHERIFF ZACK SCOTT, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff’s Motion to Stay
Proceedings and for Leave to File Amended Complaint or, in the Alternative, for Voluntary
Dismissal Without Prejudice. (ECF No. 27.) As the title of the motion indicates, Plaintiff asks
the Court to permit him to file an amended complaint or to permit him to voluntarily dismiss this
action without prejudice.
Plaintiff purports to seek the dismissal of his case under Federal Rule of Civil Procedure
41(B)(2), but there is no such provision. Rule 41(a)(1)(A)(i) provides that “the plaintiff may
dismiss an action without a court order by filing . . . a notice of dismissal before the opposing
party serves either an answer or a motion for summary judgment.” Rule 41(a)(2) in turn states
that “[e]xcept 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.” A dismissal under either part of
the rule is generally without prejudice, subject to some exceptions. See Fed. R. Civ. P.
41(a)(1)(B) and (2). Because Plaintiff states that he “seeks leave to voluntarily dismiss without
prejudice,” the Court understands that he is proceeding by motion under Rule 41(a)(2) as

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opposed to effectuating an automatic dismissal by notice under Rule 41(a)(1)(A)(i).
Because Plaintiff has neither proffered an amended complaint nor indicated what facts he
would plead in an amended complaint, the Court cannot say that Plaintiff has provided
justification for obtaining leave to amend. But, despite the pending motion to dismiss (ECF No.
13) and the Report and Recommendation (ECF No. 20), the Court concludes that Plaintiff has
provided sufficient cause warranting the requested dismissal. Informing this conclusion to a
limited degree is the fact that if Plaintiff had a better understanding of Rule 41 and had filed a
notice as opposed to a motion, this Court would have no role in the dismissal without prejudice
of this action. See Aamot v. Kassel, 1 F.3d 441, 444 (6th Cir. 1993).
The Court therefore GRANTS IN PART Plaintiff’s Motion to Stay Proceedings and for
Leave to File Amended Complaint or, in the Alternative, for Voluntary Dismissal Without
Prejudice. (ECF No. 27.) The case is dismissed without prejudice, and the pending motions and
Report and Recommendation are moot. (ECF Nos. 13, 20, 24, 25.) The Clerk shall enter
judgment accordingly and terminate this case on the docket records of the United States District
Court for the Southern District of Ohio, Eastern Division.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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