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 See Record document no. 12.

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

FRANCIS ANTHONY LOMBARDO, :

Plaintiff :

:

v. : CIVIL NO. 4:CV-04-2404

:

: (Judge McClure) 

GENE FISCHI , ET AL, :

Defendants :

ORDER

May 18, 2005

Background

This pro se civil rights action was initiated by Francis Anthony Lombardo,

an inmate presently confined at the Luzerne County Prison, Wilkes-Barre,

Pennsylvania. Following service of the complaint, Defendants filed an answer with

affirmative defenses on January 24, 2005.1

Presently pending is Plaintiff’s “motion for discontinuance for abovecaptioned matter.” Record document no. 19. Lombardo’s one sentence motion

requests that this Court “enter a discontinuance of action.” Id.

Discussion

Rule 41(a) states in relevant part:

(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule

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23(e), of Rule 66, and of any statute of the United States, an action may be

dismissed by the plaintiff without order of court (i) by filing a notice of

dismissal at any time before service by the adverse party of an answer or of

a motion for summary judgment, whichever first occurs, or (ii) by filing a

stipulation of dismissal signed by all parties who have appeared in the

action. Unless otherwise stated in the notice of dismissal or stipulation, the

dismissal is without prejudice, except that a notice of dismissal operates as

an adjudication upon the merits when filed by a plaintiff who has once

dismissed in any court of the United States or of any state an action based

on or including the same claim.

(2) By Order of Court. Except as provided

in paragraph (1) of this subdivision of this rule, 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. If a

counterclaim has been pleaded by a defendant prior to the service

upon the defendant of the plaintiff's motion to dismiss, the action

shall not be dismissed against the defendant's objection unless the

counterclaim can remain pending for independent adjudication by the

court. Unless otherwise specified in the order, a dismissal under this

paragraph is without prejudice.

Since the Defendants have already filed an answer to the complaint,

Lombardo is not entitled to voluntary dismissal under Rule 41(a)(1). However,

Rule 41(a)(2) permits a court to grant a plaintiff's request for voluntary dismissal

"upon order of the court and upon such terms and conditions as the court deems

proper."

The purpose of Rule 41(a)(2) is primarily to thwart voluntary dismissals by

an originating party that would result in some clear legal prejudice to a defendant. 

United States v. Eighteen Various Firearms, 148 F.R.D. 530, 531 (E.D. Pa. 1993). 

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Whether to grant or deny a party's motion for voluntary dismissal, however, lies

entirely within the sound discretion of the court. Id.; Citizens Savs. Ass'n v.

Franciscus, 120 F.R.D. 22, 24 (M.D. Pa. 1988). 

In the context of a Rule 41(a)(2) motion, the Court of Appeals for the Third

Circuit has adopted the same liberal policy utilized in resolving a motion by a party

seeking to amend its pleading under Fed.R.Civ.P. 15(a). In re Paoli R.R. Yard

PCB Litig., 916 F.2d 829, 863 (3d Cir. 1990). Just as leave to amend should be

granted freely, motions to voluntarily dismiss an action "should be allowed unless

a defendant will suffer some prejudice other than the mere prospect of a second

lawsuit." Id.; Shulley v. Mileur, 115 F.R.D. 50, 51 (M.D. Pa. 1987) (citing John

Evans Sons, Inc. v. Majik Ironers, Inc., 95 F.R.D. 186 190 (E.D. Pa. 1982)). 

Generally, a plaintiff should be permitted to discontinue his action upon

appropriate terms even where his purpose is to commence new litigation upon the

same issues in a forum allegedly more favorable to his claim. See Selas Corp. v.

Wilshire Oil Co., 57 F.R.D. 3, 5 (E.D. Pa. 1972). "Plain legal prejudice...does not

result simply when defendant faces the prospect of a second lawsuit or when

plaintiff merely gains some tactical advantage. Hamilton v. Firestone Tire &

Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). The issue of whether a voluntary

dismissal is prejudicial depends upon the circumstances of each case. Citizens

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Savs. Ass'n, 120 F.R.D. at 24.

In the instant case, there is no indication that any of the Defendants will

suffer any harm other than the possibility of having to address a future, similar

lawsuit filed by the Plaintiff. This litigation is not at a particularly advanced stage

and there has been relatively limited discovery. Consequently, under Shulley, there

is no basis to deny the request for voluntary dismissal.

Therefore, this Court will grant Lombardo's motion under Rule 41(a)(2) and

the case will be dismissed without prejudice to his renewal of his claims. 

However, Plaintiff is notified that his action is subject to Pennsylvania's statute of

limitations for a personal injury action. See Wilson v. Garcia, 471 U.S. 261, 276

(1985).

IT IS HEREBY ORDERED THAT:

1. Plaintiff's motion for discontinuance (Record document no. 19)

is construed as a motion for voluntary dismissal under Federal

Rule Civil Procedure 42(a)(2).

2. The Plaintiff’s motion is granted without prejudice.

3. The Clerk of Court is directed to close this case.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

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United States District Judge

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