UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
SHELLI L. FRANEK Case No. 1:18-cv-147
Plaintiff, Dlott, J.
Litkovitz, M.J.
vs.
NCS PEARSON, INC., et al., REPORT AND
Defendants. RECOMMENDATION

This matter is before the Court on plaintiff's motion to voluntarily dismiss this action
without prejudice. (Doc. 20). Defendants have not filed a response in opposition to plaintiff's
motion.

If an answer has been filed and there is no signed stipulation of dismissal by all parties
who have appeared in the action, “an action may be dismissed at the plaintiff's request only by
court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Unless the order
states otherwise, a dismissal under Rule 41(a)(2) is “without prejudice.” Jd.

“[T]he 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, 953 (6th Cir. 2009)
(citing Grover by Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994)), Generally, a
court does not abuse its discretion in granting a voluntary dismissal without prejudice unless “the
defendant would suffer ‘plain legal prejudice” as a result of the dismissal as opposed to simply
facing the possibility of a second lawsuit. Jd. (quoting Grover, 33 F.3d at 718). To determine
whether such prejudice would result, courts usually consider “the defendants 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.” Jd. (quoting Grover, 33 F.3d at
718).

Here, defendants have not filed any opposition to the motion for voluntary dismissal.
After considering the factors identified in Bridgeport Music, the Court finds that dismissal
without prejudice is appropriate in this case. Plaintiff has explained that she requests a dismissal
because she has been unable to obtain representation following her counsel’s withdrawal from
representation in September 2018. (Doc. 20). The record shows that plaintiff has made
unsuccessful efforts to obtain new counsel since that time. There is no evidence that plaintiff has
not been diligent or that she has excessively delayed prosecuting this action. See Bridgeport
Music, Inc., 583 F.3d at 953. Further, there is no indication that defendants have undertaken
extensive effort and expense related to trial preparation, which would cut against dismissing the
lawsuit without prejudice. Defendants removed the case to federal court and filed an answer to
the complaint, but they have not filed a motion for summary judgment or any other potentially
dispositive motion. See id. Based on the balance of these factors, the Court finds that dismissal
without prejudice is appropriate.

IT IS THEREFORE RECOMMENDED THAT plaintiff's motion to voluntarily

dismiss the complaint (Doc. 20) be GRANTED and that this case be DISMISSED WITHOUT

PREJUDICE.

Date: zu 4 Cheater A Littodg

Karen L. Litkovitz 7
United States Magistrate iis



UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
SHELLI L. FRANEK Case No. 1:18-cv-147
Plaintiff, Dlott, J.

Litkovitz, M.J.

vs.
NCS PEARSON, INC., et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit ri ghts on appeal. See Thomas v. Arn, 474 U.S. 140

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