Nexity Bank v. Rodriguez

Filing 187

ORDER granting 179 Motion to Dismiss with prejudice only Plaintiffs claimsagainst Defendant Rodriguez without an award of costs to either party. Signed by Honorable Timothy M Cain on 6/19/2012.(gpre, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Warren Street Partners, LLC,
Plaintiff,
v.

Richard A. Rodriguez,
Ronald E. West,
Floyd D. Elliott, and
Jeffrey Lamar Greene,
Defendants.
Richard A. Rodriguez,
Third-Party Plaintiff,
v.
Ronald E. West, Floyd D.
Elliott and Jeffrey L. Greene,
personal representative for
Clegg Lamar Greene, deceased,
Third-Party Defendants.
_________________________________

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C/A No. 7:09–2142-TMC

OPINION & ORDER

Pursuant to Rule 41(a)(2), Fed. R. Civ. P., Plaintiff Warren Street Partners, LLC,
and Defendant Richard A. Rodriguez have filed a joint motion to dismiss with prejudice only
Plaintiff’s claims against Rodriguez with no award of costs to either party.

Plaintiff and

Rodriguez specifically reserve their claims against the other Defendants. No opposition
has been filed to this motion and the time to file any opposition has run. Accordingly, this
motion is now ripe for ruling.
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 of Plaintiff’s claims against Rodriguez is appropriate.
Based on the foregoing, the court dismisses with prejudice only Plaintiff’s claims
against Defendant Rodriguez without an award of costs to either party.
IT IS SO ORDERED.

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

Greenville, South Carolina
June 19, 2012

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