Tessen v. Lepak et al

Filing 64

ORDER defendant to advise by 7/10/09 whether he agrees to dismissal without prejudice. If defendant does not agree to such a dismissal, plaintiff may have until July 17, 2009, in which to withdraw the motion for voluntary dismissal. Signed by Chief Judge Barbara B. Crabb on 6/30/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------R O BER T W. TESSEN, ORDER Plaintiff, 08-cv-556-bbc v. K EN T LEPAK, Defendant. --------------------------------------------T his is a civil action in which plaintiff contends that defendants violated his rights u nd er the Fourth Amendment by seizing his property without probable cause, his permission or a warrant. The case is before the court on cross-motions for summary judgment.

H ow ever, now plaintiff has written a letter to the court dated June 19, 2009, which I con strue as a motion for voluntary dismissal of the case. W hen a motion for voluntary dismissal is filed after the defendant has filed an answer o r motion for summary judgment such as in this case, Rule 41(a)(2) provides that the action m ay be dismissed by the plaintiff "only by court order, on terms that the court considers pro per." Because defendant has been required to defend this action, I will grant plaintiff's m otio n for voluntary dismissal only on the condition that the dismissal is with prejudice,

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unless defendant agrees to a dismissal without prejudice as plaintiff asks. If defendants do no t agree to a dismissal without prejudice, then plaintiff will have an opportunity to w i th draw his motion.

OR DER IT IS ORDERED that defendant may have until July 10, 2009, in which to advise plaintiff and the court whether he agrees to a dismissal of this action without prejudice. If d efen dan t agrees to such a dismissal, the clerk of court is directed to enter a judgment of dism issal without prejudice. If defendant does not agree to such a dismissal, plaintiff may have until July 17, 2009, in which to withdraw his motion for voluntary dismissal. If, by July 17, 2009, plaintiff fails to request withdrawal of his notice of voluntary dismissal, the clerk of court is directed to enter judgment dismissing this case with prejudice. E n tered this 30t h day of June, 2009. B Y THE COURT:

B AR B AR A B. CRABB D istrict Judge

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