Chasteen v. Mohr et al
REPORT AND RECOMMENDATION that 23 MOTION to Dismiss filed by Adam Chasteen, be GRANTED and that 19 MOTION to Dismiss for Insufficient Service of Process filed by State of Ohio be DENIED AS MOOT. Objections to R&R due by 3/28/2016. Signed by Magistrate Judge Terence P. Kemp on 3/9/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Gary Mohr, et al.,
Case No. 2:14-cv-1690
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
As reflected in the Court’s order dated January 5, 2016, a
number of the named defendants have not yet been served.
order directed Plaintiff to show cause why his claims against
those defendants should not be dismissed without prejudice.
other defendants in the case filed an answer but have filed no
motions, having obtained a stay of the dispositive motion
In response to the show cause order, Plaintiff moved to
dismiss the entire case without prejudice.
In his motion (Doc.
23), he explains that he had not been able to pursue discovery or
to prepare his case for trial.
He asserts that a dismissal will
not prejudice the remaining defendants, noting that it does not
appear they have incurred any significant expense up to this
point in defending the case.
Defendants have responded by
stating that they have no objection to a dismissal with
prejudice, and that they recognize that it is within the Court’s
discretion to allow a dismissal without prejudice.
Defendants are correct about that, and this Court has, in
the past, exercised its discretion in favor of such dismissals.
See, e.g., Luckey v. Butler County, 2006 WL 91592 (S.D. Ohio Jan.
Luckey contains a good exposition of the factors
which the Court is to consider, including prejudice to the
defendants, the diligence of the plaintiff, and the reasons given
for the request to dismiss.
See id. at *2, citing Grover by
Grover v. Eli Lilly and Co., 33 F.3d 716, 718 (6th Cir. 1994).
The presence or absence of “plain legal prejudice” to the
defendants is a key factor, and when that cannot be demonstrated,
this Court has been inclined to permit dismissal of case like
this one, even in a situation where defendants have presented
potentially dispositive motions, which, of course, has not
See also Neu v. Adams County Jail, 2012 WL
3878717 (S.D. Ohio Sept. 6, 2012), adopted and affirmed 2012 WL
5378303 (S.D. Ohio Oct. 31, 2012).
Given that defendants have
neither filed a dispositive motion (apart from the one noting
failure of service on some defendants) nor asserted any plain
legal prejudice which might result from the granting of
Plaintiff’s motion, it is recommended that Plaintiff’s motion to
dismiss (Doc. 23) be granted, that this case be dismissed without
prejudice, and that the motion to dismiss based on insufficiency
of service of process (Doc. 19) be denied as moot.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) 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).
A judge of this Court shall make a de novo determination of those
of the report or specified proposed findings or
recommendations to which objection is made.
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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