United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge
the Court is a Motion to Dismiss filed by Plaintiff. ECF No.
21. Defendants have not filed a response, and the time for
response has passed. The Court finds this matter ripe for its
February 8, 2017, Plaintiff filed his pro se
Complaint and Application to Proceed in forma
pauperis (“IFP”). ECF Nos. 1, 2. Defendants
Nash, Hensley, Cruise and Crane filed their Answer on March
6, 2017. ECF No. 10. On March 9, 2017, Defendant Loni filed a
Motion to Dismiss in lieu of filing an answer, which is
currently pending before the Court. ECF No. 11. Defendant
Shumake was served on April 17, 2017 (ECF No. 22) and filed
an Answer to the Complaint on May 5, 2017. ECF No. 23.
April 10, 2017, Plaintiff filed the instant motion. The
motion states as follows: “I would like to no longer
pursue this Civil Case. I believe that god has plan for me in
my life, however if I continue with the case I feel I will be
out of the will of god. I apologize and ask the courts
dismiss the case please.” ECF No. 21.
Rule of Civil Procedure Rule 41(a)(1)(A)(i) allows a
plaintiff to voluntarily dismiss his action without prejudice
and without a court order by filing “a notice of
dismissal before the opposing party serves either an answer
or a motion for summary judgment.” Defendant Shumake
filed his answer to Plaintiff's Complaint on May 5, 2017,
which was after Plaintiff filed the instant motion. Thus, the
Court construes Plaintiff's motion to dismiss his claims
against Defendant Shumake as a Notice of Voluntary Dismissal
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
Accordingly, the Court finds that Plaintiff's claims
against Defendant Shumake should be dismissed without
Loni filed a Motion to Dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) in lieu of filing an Answer to
Plaintiff's Complaint. “Because a motion to dismiss
under [Rule 12(b)(6)] is neither an answer nor a motion for
summary judgment, its filing generally does not cut off a
plaintiff's right to dismiss by notice.” In re
Bath & Kitchen Fixtures Antitrust Litig., 535 F.3d
161, 166 (3d Cir. 2008). The Court, thus, interprets
Plaintiff's motion to dismiss his claims against
Defendant Loni as a Notice of Voluntary Dismissal pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A)(i). Accordingly,
the Court finds that Plaintiff's claims against Defendant
Loni should be dismissed without prejudice.
Nash, Hensley, Cruise and Crane filed an answer to
Plaintiff's Complaint prior to the filing of the instant
motion. “Rule 41(a)(2) of the Federal Rules of Civil
Procedure governs the issue of voluntary dismissal when the
request for dismissal comes after an answer or motion for
summary judgment.” Gray v. Burlington N. Santa Fe
Ry. Co., No. 3:09-CV-00010, 2011 WL 12828516, at *1
(E.D. Ark. Mar. 15, 2011). As a result, the Court construes
Plaintiff's motion as to the aforementioned Defendants as
a Motion for Voluntarily Dismissal pursuant to Rule 41(a)(2).
41(a)(2) provides that “an action shall not be
dismissed at the plaintiff's instance save upon order of
the court and upon such terms and conditions as the court
deems proper.” The Eighth Circuit has established the
following four factors to be considered when determining
whether to grant a motion to voluntarily dismiss pursuant to
Rule 41(a)(2): (1) the defendant's effort and the expense
involved in preparing for trial; (2) excessive delay and lack
of diligence on the part of the plaintiff in prosecuting the
action; (3) insufficient explanation of the need to take a
dismissal; and (4) the fact that a motion for summary
judgment has been filed by the defendant. Paulucci v.
City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987).
present case, the Court finds that the first factor is met as
Defendants have not expended significant effort and expense
in preparing for trial at this stage of the litigation.
Regarding the second factor, the Court has not been presented
with any evidence to support a finding that Plaintiff has
excessively delayed his prosecution of the action. As a
result, the second factor supports granting Plaintiff's
motion. The Court further finds that the third factor is
satisfied as Plaintiff has sufficiently explained his need to
dismiss this action. Lastly, the fourth factor supports
granting Plaintiff's motion as no motion for summary
judgment has been filed by any Defendant. In conclusion, the
Court finds that a balance of the factors weighs in favor of
granting Plaintiff's Rule 41(a)(2) motion to dismiss his
claims against Defendants Nash, Hensley, Cruise and Crane.
last issue the Court must address is whether Plaintiff's
dismissal pursuant to Rule 41(a)(2) is considered to be with
or without prejudice. Plaintiff's motion fails to specify
whether his request is for dismissal with or without
prejudice. “[I]f the plaintiff either moves for
dismissal without prejudice or fails to specify whether the
request is for dismissal with or without prejudice, the
matter is left to the discretion of the court. The trial
court may grant a Rule 41(a) dismissal without prejudice or
may require that the dismissal be with prejudice.” 9
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice & Procedure § 2367 (2d ed.
1984 & Supp. 2008). Upon consideration, the Court finds
that dismissal without prejudice is appropriate.
conclusion, the Court finds that Plaintiff's Motion to
Dismiss (ECF No. 21) is GRANTED. Accordingly, the Court finds
that Plaintiff's Complaint should be and hereby is
DISMISSED WITHOUT PREJUDICE. As a result of the dismissal of
Plaintiff's Complaint, Defendant Loni's Motion to
Dismiss (ECF ...