Beard et al v. JPMorgan Chase Bank, National Association

Filing 18

ORDER GRANTING 16 Motion to Dismiss without prejudice. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
DAVID BEARD and AIMEE BEARD,
Plaintiff,
v.
CHASE BANK, et al.,
Defendants.

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Civil Action No. SA-12-CV-453-XR

ORDER
On this date, the Court considered Plaintiffs motion for voluntary dismissal (docket no.
15). Plaintiff filed this lawsuit on May 10, 2012. On May 17, 2012 Defendant Chase Bank filed its
answer. Also on May 17, Defendants Lacaouture and Hiatt filed a Motion to Dismiss and Defendant
Chase Bank filed its Motion for Summary Judgment. On July 9, 2012, the Court considered
Defendant’s Motion for Summary Judgment, construed the motion as a Rule 12(b)(6) Motion to
Dismiss, and entered an Order dismissing Plaintiffs’ claims against Defendant without prejudice.
The Court ordered Plaintiffs to file an amended complaint on or before August 6, 2012. That same
day, Plaintiffs filed a Notice of Non-Suit as to defendants Lacouture and
Hiatt. Plaintiffs did not file an amended complaint. On August 14, 2012, Plaintiffs filed a “Notice
of Intent Not to Stay in Case as well as Notice of Nonsuit Without Prejudice”
Because Defendants have answered and filed a motion for summary judgment, Plaintiff’s suit
may be dismissed only by court order, “on terms that the court considers proper.” FED . R. CIV . P.
41(a)(2).

Rule 41(a)(2) is designed to protect non-movants from prejudice occasioned by
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unconditional dismissals. Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 316 (5th Cir. 2002).
Therefore, “faced with a Rule 41(a)(2) motion, the district court “should first ask whether an
unconditional dismissal will cause the non-movant to suffer plain legal prejudice.” Id. at 317. If the
district court concludes that granting the motion unconditionally will cause plain legal prejudice, it
has two options; it can deny the motion outright or it can craft conditions that will cure the prejudice.
Defendants have asserted that they would suffer plain legal prejudice by an unconditional
dismissal. The fact that additional expense may be incurred in re-litigating issues will not generally
support a finding of “plain legal prejudice” and denial of a Rule 41(a)(2) motion to dismiss. Elbaor,
279 F.3d at 317 n.3. Thus, the Court finds no prejudice would result from granting the motion, and
that no conditions are required.
Plaintiff’s motion to voluntarily dismiss his case (docket no. 31) is GRANTED. This
case is DISMISSED WITHOUT PREJUDICE.
It is so ORDERED.
SIGNED this 21st day of August, 2012.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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