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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LAMONT CLIFFORD KING, #466560

Plaintiff,

vs. Case No.: 3:10cv258/RV/EMT

JAMES SHEPPARD, Chief Health Officer;

JOHN LOVELACE, Senior Registered Nurse,

Defendants.

_________________________________/

REPORT AND RECOMMENDATION

This cause is before the court upon Plaintiff’s Motion for Dismissal (doc. 79). Defendants

moved for summary judgment (doc. 77) on Plaintiff’s second amended complaint (doc. 17), and

Plaintiff was directed to file a response (doc. 78). In lieu of responding, Plaintiff now requests that

the court dismiss this action without prejudice and without cost to any of the parties “on the following

grounds: in the best interest of justice, and requests dismissal without prejudice” (see doc. 79 at 1).

Defendants have filed a response indicating that they do not oppose Plaintiff’s motion (doc. 80).

Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure provides that an action may be

dismissed by a plaintiff without an order of the court by filing a stipulation of dismissal signed by all

parties who have appeared in the action. Unless otherwise stated, the dismissal is without prejudice. 

See Fed. R. Civ. P. 41(a)(1)(A)(ii). Here, there is no stipulation of dismissal that is signed by all the

parties who have appeared in this action. Therefore, Plaintiff is not entitled to automatic dismissal

of this action under Rule 41(a)(1)(A)(ii). 

As previously noted, however, Defendants do not oppose Plaintiff’s motion for dismissal

of this action without prejudice (see doc. 80). Therefore, the court will treat Plaintiff’s motion as

one to voluntarily dismiss under Rule 41(a)(2). Dismissal under Rule 41(a)(2) shall not be had “at

the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court

deems proper.” Fed. R. Civ. P. 41(a)(2). Dismissal is without prejudice unless otherwise provided
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in the order. See id. The Eleventh Circuit has explained that

[t]he district court enjoys broad discretion in determining whether to allow a

voluntary dismissal under Rule 41(a)(2). McCants v. Ford Motor Co., Inc., 781 F.2d

855, 857 (11th Cir. 1986). “[I]n most cases, a voluntary dismissal should be granted

unless the defendant will suffer clear legal prejudice, other then the mere prospect

of a subsequent lawsuit, as a result.” Id. at 856–57. “The crucial question to be

determined is, [w]ould the defendant lose any substantial right by the dismissal.” 

Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967). In

exercising its “broad equitable discretion under Rule 41(a)(2),” the district court

must “weigh the relevant equities and do justice between the parties in each case,

imposing such costs and attaching such conditions to the dismissal as are deemed

appropriate.” McCants, 781 F.2d at 857.

Pontenberg v. Boston Sci. Corp., 252 F.3d 1253, 1255 (11th Cir. 2001) (modifications added). 

Here, voluntary dismissal of this action is proper because Plaintiff has requested such a dismissal

and Defendants do not oppose his request. Moreover, dismissal should be without prejudice by

agreement of the parties.

 Accordingly, it is respectfully RECOMMENDED:

1. That Plaintiff’s Motion for Dismissal (doc. 79) be GRANTED and this case be

DISMISSED without prejudice.

2. That all pending motions be DENIED as moot.

At Pensacola, Florida this 23rd day of October 2012.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon the magistrate judge and all other parties. Failure to object may limit the scope

of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

Case No.: 3:10cv258/RV/EMT