Kinard v. Greenville Police Department et al

Filing 75

ORDER dismisses with prejudice the claims against Defendant American Services. Signed by Honorable Timothy M Cain on 6/14/2012. (gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Ira Milton Kinard,
Plaintiffs,
v.

City of Greenville; Officers
and or Former Officers C.B.
Mills, Matthew Scott Jowers,
Jeremiah Milliman, and American
Services, Inc.,
Defendants.
_________________________________

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C/A No. 6:10–3246-TMC

OPINION & ORDER

Pursuant to Rule 41(a)(1)(A)(ii), Fed. R. Civ. P., Plaintiff filed a stipulation of
dismissal with prejudice as to Defendant American Services, Inc. (“American Services”).
(Dkt. # 65). However, Rule 41(a)(1)(ii) requires a stipulation of dismissal to be signed by
all parties who have appeared in the action. Defendants Mills and Milliman did not sign the
stipulation. The court gave the parties until June 8, 2012, to file an amended stipulation
and stated that, if no supplement was filed, the court would construe the currently filed
stipulation as a motion to dismiss with prejudice Plaintiff’s claims against American
Services pursuant to Rule 41(a)(2).

An amended stipulation was not filed. Accordingly, the

court will construe the original stipulation as a motion to dismiss pursuant to Rule 41(a)(2).
Under Rule 41(a)(2), a court may dismiss an action “at the plaintiff's request only by
court order, on terms that the court considers proper.” “The purpose of Rule 41(a)(2) is
freely to allow voluntary dismissals unless the parties will be unfairly prejudiced.” Davis v.
USX Corp., 819 F.2d at 1273. “In considering a motion for voluntary dismissal, the district
court must focus primarily on protecting the interests of the defendant.” Id. “A plaintiff's
motion under Rule 41(a)(2) should not be denied absent substantial prejudice to the

defendant.”

Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir.1986).

In deciding

whether to dismiss without prejudice under Rule 41(a), “a district court should consider
factors such as the opposing party's effort and expense in preparing for trial, excessive
delay and lack of diligence on the part of the movant, and insufficient explanation of the
need for a voluntary dismissal, as well as the present stage of litigation.” Howard v. Inova
Health Care Servs., 302 F. App'x 166,178–179 (4th Cir. 2008) (internal quotations and
citations omitted). Here, considering these factors and without any opposition, the Court
finds that voluntary dismissal is appropriate.
Based on the foregoing, the court dismisses with prejudice the claims against
Defendant American Services.
IT IS SO ORDERED.

s/Timothy M. Cain
Timothy M. Cain
United States District Judge

Greenville, South Carolina
June 14, 2012

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