Ortiz, Gregory v. Huibregtse, Peter et al

Filing 48

ORDER that defendants have until March 27, 2013 to advise whether they agree to a dismissal of the claims without prejudice. If defendants do not agree to such a dismissal, plaintiff may have until April 5, 2013, in which to (a) withdraw his motion for voluntary dismissal and file his response to defendants' motion for summary judgment; or (b) advise the court that he has no objection to a dismissal with prejudice. Signed by District Judge William M. Conley on 3/20/2013. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

GREGORY S. ORTIZ,
Plaintiff,

OPINION AND ORDER

v.
11-cv-195-wmc
BRIAN KOOL, CHRISTINE BEERKIRCHER,
JEANETTE COOK, and MARLA WALTERS,
Defendants.

Plaintiff Gregory S. Ortiz is proceeding in this action on his claim that defendants
retaliated against him in violation of his First Amendment rights against defendants
Brian Kool, Christine Beerkircher, Jeanette Cook and Marla Walters, all employees at the
Green Bay Correctional Institution. Defendants have responded to the complaint and
have filed a motion for summary judgment. (Dkt. #38.) Plaintiff’s opposition to that
motion was due on or before March 15, 2013. Instead of responding, plaintiff filed a
motion purporting to dismiss his complaint voluntarily, which includes a pointed request
that the court only grant this motion. (Dkt. #47.) The court interprets this request as
asking that the court’s dismissal of his remaining claims be without prejudice, rather than
on the merits of defendants’ now unopposed motion for summary judgment.
When a motion for voluntary dismissal is filed after a defendant has filed an
answer, Federal Rule of Civil Procedure 41(a)(2) provides that the action may be
dismissed by the plaintiff “only upon order of the court and upon such terms and
conditions as the court deems proper.” Because defendants have been required to defend
this action, the court will grant plaintiff’s motion for voluntary dismissal only if

defendants agree to the proposed dismissal without prejudice. If the defendants do not
agree to a dismissal without prejudice, then plaintiff will have an opportunity to
withdraw his motion to dismiss and promptly file his past-due response to defendants’
motion for summary judgment. Otherwise, the dismissal will be with prejudice.

ORDER
IT IS ORDERED that:
1) defendants may have until March 27, 2013, in which to advise plaintiff and
the court whether they agree to dismissal of the remaining claims in this action
without prejudice. If defendants agree to such a dismissal, the clerk of court is
directed to close this case.
2) If defendants do not agree to such a dismissal, plaintiff may have until April 5,
2013, in which to (a) withdraw his motion for voluntary dismissal and file his
response to defendants’ motion for summary judgment; or (b) advise the court
that he has no objection to a dismissal with prejudice.
3) If plaintiff fails to request withdrawal of his notice of voluntary dismissal by
April 5, 2013, the clerk of court is directed to enter judgment dismissing this
case with prejudice.
Entered this 20th day of March, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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