IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Benjamin Hendricks, :

Plaintiff, :

v. : Case No. 2:11-cv-399

Jeffrey Norman Hazzard, et al., : JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

Defendants. :

REPORT AND RECOMMENDATION

This matter is before the Court on plaintiff Benjamin

Hendricks’ request for judicial notice. Defendants Jeffrey

Norman Hazzard, Mary Lawrence, Ms. Harris, and Douglas Richard

have construed Mr. Hendricks’ request as a motion to withdraw his

complaint and have filed a response in opposition. Mr. Hendricks

has made no other filings to date. Before the Court addresses

the merits of the parties’ filings, some explanation of the

events preceding Mr. Hendricks’ filing is in order.

According to his request for judicial notice, on May 15,

2014, Mr. Hendricks mailed to the Court a motion to withdraw his

complaint without prejudice to its refiling within one year under

the Ohio Savings Statute R.C. 2905.19. He contends that he

received a time stamped copy of his motion indicating that it had

been received in the Clerk’s office. He has confirmed this

representation by attaching a copy of his motion with a time

stamp demonstrating receipt by the Clerk’s office on May 21,

2014. A review of the Court’s docket reveals that, although Mr.

Hendricks’ motion was time-stamped, the motion was not filed on

the docket. Mr. Hendricks further asserts his belief that,

according to the mailbox rule, this case was closed on May 15,

2014. Accordingly, he indicates his surprise at having received 

Case: 2:11-cv-00399-MHW-TPK Doc #: 124 Filed: 09/09/14 Page: 1 of 7 PAGEID #: <pageID>
defendants’ motion to compel filed July 11, 2014. Apparently,

the receipt of the motion to compel prompted Mr. Hendricks to

file his request for judicial notice. The notice reiterates the

request, originally set forth in his unfiled motion, for an order

closing this case without prejudice. 

Based on this series of events, the Court also will construe

Mr. Hendricks’ request for judicial notice as a motion to

withdraw his complaint without prejudice. For the following

reasons, it will be recommended that the motion be granted.

Mr. Hendricks seeks to withdraw his complaint stating that

he “has serious health concerns that need to be addressed and is

financially unable to prosecute this case further at this time.” 

He cites to the Ohio Savings Statute in an effort to confirm his

right to refile this action within one year. Mr. Hendricks also

contends that his mailing of his motion to withdraw effectively 

closed this case of May 15, 2014.

Initially, the Court notes that, to the extent that Mr.

Hendricks believes that his mailing of his motion closed this

case on May 15, 2014, he is incorrect. The voluntary dismissal

of actions is governed by Fed.R.Civ.P. 41 which provides for

voluntary dismissal without a court order under Fed.R.Civ.P.

41(a)(1), or by court order under Fed.R.Civ.P. 41(a)(2). Mr.

Hendricks is not automatically entitled to a voluntary dismissal

without prejudice under Section (a)(1) because defendants have

filed an answer and a motion for summary judgment. Rather,

Fed.R.Civ.P. 41(a)(2) applies here and provides, in relevant

part:

Except as provided in Rule 41(a)(1), an action may

be dismissed at the plaintiff’s request only by court

order, on terms that the court considers proper. ... 

Unless the order states otherwise, a dismissal under

this paragraph (2) is without prejudice. 

Determinations regarding a Rule 41(a)(2) motion are within the

-2-

Case: 2:11-cv-00399-MHW-TPK Doc #: 124 Filed: 09/09/14 Page: 2 of 7 PAGEID #: <pageID>
Court’s broad discretion. Kehoe Component Sales, Inc. v. Best

Lighting Products, Inc., 933 F.Supp.2d 974 (S.D. Ohio 2013),

citing Commodities Export Co. v. Detroit Intern. Bridge Co., 695

F.3d 518, 520 (6th Cir. 2012). 

As explained by the Court in Kehoe:

“The purpose of Rule 41(a)(2) is to protect the

nonmovant ... from unfair treatment.” Bridgeport

Music, Inc. v. Universal-MCA Music Pub., Inc., 583 F.3d

948, 053 (6th Cir. 2009). “The mere prospect of having

to face a second lawsuit” is not the type of prejudice

that Rule 41(a)(2) addresses. Jones v. W. Reserve

Transit Auth., 455 Fed.Appx. 640, 643 (6th Cir. 2012). 

Rather, in considering whether voluntary dismissal

would result in “plain legal prejudice” the Court

“consider[s] the defendant’s effort and expense of

preparation for trial, excessive delay and lack of

diligence on the part of the plaintiff in prosecuting

the action, insufficient explanation for the need to

take a dismissal, and whether a motion for summary

judgment has been filed by the defendant.” Bridgeport,

583 F.3d at 953 (internal quotations omitted).

Under Rule 41(a)(2), the Court may impose

conditions on dismissal such as “the payment of costs

incurred by a defendant.” Id. at 954. The United

States Court of Appeals for the Sixth Circuit, however,

“has expressly rejected the contention that the payment

of defense costs is universally required for voluntary

dismissal under Rule 41(a)(2).” Id.; see also Waldman

v. Pitcher, No. 1:10-cv-238, 2011 WL 4337046, at *2

(S.D. Ohio 2011) (“Rule 41(a)(2) is not a fee-shifting

statute such that attorney fees are automatically

awarded.”)(internal quotations omitted)(Report and

Recommendation later adopted). Relevant factors in

determining whether to award costs and attorney fees

include “whether a plaintiff acted in good faith in

bringing the suit ... and whether costs were wasted

....” Ferron v. 411 Web Directory, No. 2:09-cv-153,

2010 WL 2998607, at *4 (S.D. Ohio July 28, 2010). 

Moreover, a separate way to avoid waste is to allow the

nonmovant to use evidence obtained in discovery in a

subsequent action.” Id. at *5. 

Id. at 991-992.

-3-

Case: 2:11-cv-00399-MHW-TPK Doc #: 124 Filed: 09/09/14 Page: 3 of 7 PAGEID #: <pageID>
In their response, defendants argue that they will suffer

plain legal prejudice if this case is dismissed without

prejudice. Accordingly, defendants request that any dismissal be 

with prejudice. More specifically, defendants argue that Mr.

Hendricks cannot resurrect his use of force claim, a claim which

was dismissed for failure to exhaust administrative remedies, by

voluntarily dismissing his remaining claims. Further, they

contend, relying on correspondence from Mr. Hendricks, that his

stated purpose for seeking a voluntary dismissal - that he is

unable to continue at this time due to health and financial

reasons - is disingenous and his true intent is to circumvent the

Court’s prior dismissal of his use of force claim. In support of

this argument, defendants have provided a declaration from their

counsel, Peter L. Jamison, with attached exhibits. According to

defendants, this information demonstrates Mr. Hendricks’ belief

that he will be able to avoid the exhaustion requirement of the

PLRA by re-filing this case after his release from prison in

November, 2014, and once again pursue his use of force claim. 

Defendants also assert that they have invested significant

effort in the litigation of this case over the last three years

and detail at length the procedural history of this case. 

Briefly, they note that they have engaged in substantial

discovery and motions practice relating to discovery issues, in

addition to filing two motions to dismiss and a motion for

summary judgment. Finally, they request that, because they have

expended such time and effort in defending this case, in the

event of a dismissal without prejudice, the Court condition Mr.

Hendricks’ re-filing of any claim upon the reimbursement of their

costs. 

Applying the standards outlined above, the Court is not

convinced that the defendants will suffer plain legal prejudice

as a result of a voluntary dismissal without prejudice. The

-4-

Case: 2:11-cv-00399-MHW-TPK Doc #: 124 Filed: 09/09/14 Page: 4 of 7 PAGEID #: <pageID>
record in this case, which is not insubstantial given its age,

does not reflect Mr. Hendricks’ excessive delay or lack of

diligence in his prosecution of this action. In fact, Mr.

Hendricks has successfully defended, at least in part,

defendants’ multiple dispositive motions. Further, to the extent

that Mr. Hendricks cites health concerns in support of his need

to voluntarily dismiss this action, his numerous health

conditions have been outlined in detail in several cases before

this Court. Although the defendants call attention to what they

perceive as Mr. Hendricks’ legal maneuvering, the Court notes

that Mr. Hendricks has moved to withdraw another action pending

in this Court for the same reasons he cites here. See Hendricks

v. Kasich, Case No. 2:12-cv-729. Additionally, there is no

summary judgment motion currently pending. While defendants may

have invested time and effort in the somewhat extensive motions

practice undertaken in this case, this factor standing alone

under the circumstances here, is not enough to persuade the Court

that a dismissal with prejudice is warranted. At its essence,

the focus of defendants’ argument is that, because they have

expended such effort, they should not be subjected to a second

lawsuit. 

At the same time, the Court recognizes that defendants will

not be free from expense and further effort arising from any

future re-filing of this action. These concerns, however, are

adequately addressed by Rule 41(d) which provides:

If a plaintiff who previously dismissed an action in

any court files an action based on or including the

same claim against the same defendant, the court:

(1) may order the plaintiff to pay all or part of

the costs of that previous action; and

(2) may stay the proceedings until the plaintiff

has complied. 

-5-

Case: 2:11-cv-00399-MHW-TPK Doc #: 124 Filed: 09/09/14 Page: 5 of 7 PAGEID #: <pageID>
Under the circumstances presented here, the Court will recommend

that any re-filing of this action be conditioned upon defendants’

ability to seek recovery for costs incurred in connection with

this action. See Chasteen v. Johnston, Case No. 2:12-cv-229,

2013 WL 1627657 (S.D. Ohio April 16, 2013). Consequently, in the

event of Mr. Hendricks’ re-filing of this action, defendants may

seek to recover, upon submission to the Court of appropriate

evidentiary support, any costs incurred in this dismissed action

which will be incurred again in the re-filed action, so long as

it is clear that the recurrence of those costs was necessitated

by the dismissal and refiling. Any costs incurred in this action

for matters which can be used in the re-filed case would

generally not be recoverable. Also, as the Court of Appeals for

the Sixth Circuit has held, attorneys’ fees are not recoverable

as costs under Rule 41(d). Rogers v. Wal-Mart Stores, Inc., 230

F.3d 868, 874 (6th Cir. 2000). 

For these reasons, the Court recommends that the request to

take judicial notice, construed as a motion to voluntarily

withdraw the complaint (Doc. 122), be granted without prejudice

and on the condition that, should plaintiff re-file this action,

he be required to reimburse defendants for appropriate costs, if

any, as set forth above. 

PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

-6-

Case: 2:11-cv-00399-MHW-TPK Doc #: 124 Filed: 09/09/14 Page: 6 of 7 PAGEID #: <pageID>
in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

-7-

Case: 2:11-cv-00399-MHW-TPK Doc #: 124 Filed: 09/09/14 Page: 7 of 7 PAGEID #: <pageID>