Gorrell v. Huffman
Filing
10
MEMORANDUM OPINION AND ORDER Granting Pla's 5 Motion to Dismiss Without Prejudice, declines to 5 Remand. Clerk is directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 5/25/11. (c to Rogers by mail)(mji)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES L. GORRELL,
Plaintiff,
v.
Civil Action No. 5:11CV44
(STAMP)
CPL. SHANNON HUFFMAN,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO DISMISS WITHOUT PREJUDICE
I.
Background
On February 10, 2011, the plaintiff in the above-styled civil
action filed a civil complaint in the Magistrate Court of Tyler
County, West Virginia alleging that the defendant violated his
civil rights by conducting an illegal stop, performing an illegal
search, and issuing a pretextual citation.
Because the plaintiff
alleges civil rights violations, which are actionable under 42
U.S.C. § 1983, the defendant removed the case to this Court on
March 21, 2011 pursuant to 28 U.S.C. § 1331.
On March 28, 2011,
the plaintiff filed a motion to dismiss without prejudice or, in
the alternative, motion to remand to magistrate court.
The
defendant filed a timely response to the plaintiff’s motion, but
the plaintiff did not file a reply.
The plaintiff’s motion to
dismiss without prejudice is currently pending before this Court.
II.
Applicable Law
In federal civil suits, the plaintiff has an absolute right to
dismiss without prejudice up until the defendant answers the
complaint or moves for summary judgment. Fed. R. Civ. P. 41(a)(1).
Once the defendant has answered the complaint, however, dismissal
is only by court order or by stipulation of the parties.
Id.; see
Carnis Delp v. Am. Optical Corp., No. 5:10-cv-00996, 2010 WL
3744075, at *1 (S.D. W. Va. Sept. 21, 2010) (citing Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 394 (1990)).
In considering
whether to grant a plaintiff’s voluntary motion to dismiss, the
Court will consider such factors 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.’”
Miller v. Terramite Corp., 114 F. App’x
536, 539 (4th Cir. 2004) (quoting Phillips USA, Inc. v. Allflex
USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996)).
III.
Discussion
In this case, the plaintiff did not file a notice of dismissal
pursuant to Rule 41(a)(1)(A)(I) before the defendant filed his
answer on March 28, 2011.
Further, there is no stipulation of
dismissal signed by both parties pursuant to Rule 41(a)(1)(A)(ii).
However, this Court can and will grant the plaintiff’s motion to
dismiss under Rule 41(a)(2), but without prejudice to bringing an
action, if he can, in state court.
The complaint as filed clearly
states a civil rights action under 42 U.S.C. § 1983.
Thus, this
Court acknowledges that another action in state court presenting
the same allegations would probably be subject to removal.
2
This
Court declines to remand this case because the plaintiff has pled
a federal cause of action, specifically, claims under § 1983.
IV.
Conclusion
For the reasons stated above, the plaintiff’s motion to
dismiss is GRANTED WITHOUT PREJUDICE.1
It is ORDERED that this
civil action be DISMISSED and STRICKEN from the active docket of
this Court.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is directed to enter judgment
on this matter.
DATED:
May 25, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
1
While this Court declines to impose any sanctions upon the
plaintiff or his counsel at this time, the plaintiff and his
counsel are advised that this Court considers some of the language
in the plaintiff’s motion to be unprofessional and inappropriate as
to counsel and inappropriate as to the plaintiff as a party, to put
it charitably. The use of similar language in any pleading later
filed, should this case return to this Court, will be treated less
generously.
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?