*

Honorable Levin H. Campbell, Senior U.S. Circuit Judge for

the First Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-5172.

Wanda NEGRÓN, Antonio Dominguez, Victor Alfred Varela, William

Calderin, Juan Carlos Pérez, Maria B. Calcerrada, Maria Beatriz

Guitierrez, Violeta Pilgrin, Victor Diaz, Plaintiffs-Appellants,

Rafael Negrón, Russell Royce, Gloria Royce, Kathryne Schwickeri,

Maria Martinez, Antonio Martinez, Judy Freyre, Jose M. Argote,

Mirta Pestana, Elsa B. Dominguez, Plaintiffs,

v.

CITY OF MIAMI BEACH, FLORIDA, et al., Defendants-Appellees,

Dori J. De Falco, Intervenor-Plaintiff.

June 10, 1997.

Appeals from the United States District Court for the Southern

District of Florida. (No. 94-1055-CIV-KEHOE), James W. Kehoe,

Judge.

Before CARNES, Circuit Judge, and FAY and CAMPBELL*

, Senior Circuit

Judges.

CARNES, Circuit Judge:

Plaintiffs brought this action alleging that the electoral

structure for selecting the members of the governing commission of

the City of Miami Beach, Florida, violated § 2 of the Voting Rights

Act by diluting Hispanic voting power. After a bench trial, the

district court concluded that there was no § 2 violation and

entered judgment for the defendants. We affirm.

I. FACTS AND PROCEDURAL HISTORY

The City of Miami Beach is located on a seven mile stretch of

beach between the Atlantic Ocean and Biscayne Bay. According to

the 1990 census, 92,639 people live within its 87 blocks. The
 1

Occasionally in the trial and in the exhibits, the white

population is stated as 44,421. At other times, it is stated as

44,721. The percentage which is always stated to be 48.27%, is

correct only if the figure 44,721 is used. That figure also

agrees with the census data. 

racial characteristics of the population are as follows:

 White 44,7211 48.27% 

Black 3,358 3.62%

Hispanic 43,342 46.79%

Other 1,218 1.31%

______________________________________

Total 92,639

The voting age population ("VAP"), defined as those aged 18 and

over, is as follows:

 White VAP 40,106 50.41% 

Black VAP 2,548 3.20%

Hispanic VAP 35,947 45.18%

Other VAP 957 1.20%

______________________________________

Total VAP 79,558

However, according to sample data released by the Census Bureau,

only 50.16% of the Hispanic residents of Miami Beach are citizens,

while 88.18% of the non-Hispanic residents are citizens.

Miami Beach is governed by the City Commission, consisting of

a mayor and six commissioners. All seven members (the mayor and

the six commissioners) are elected in at-large elections. The six

commissioner positions are numbered so that candidates must run for

a particular seat. The mayor presides over City Commission

meetings but otherwise has no greater authority than the other six
 2

Plaintiffs also named the Dade County, Florida supervisor

of elections as a defendant but later dismissed the claims

against him. 

commissioners. The City Commission hires a city manager to run the

city on a day-to-day basis.

A number of Hispanic citizens who reside in Miami Beach

brought this action against the City, its mayor, the city

commissioners, and the city clerk.2 The complaint alleged that the

defendants violated § 2 of the Voting Rights Act of 1965, 42 U.S.C.

§ 1973, and further violated 42 U.S.C. §§ 1981 and 1983.

Plaintiffs contended that the at-large method of electing the mayor

and city commissioners impermissibly diluted Hispanic voting

strength in Miami Beach.

The district court held a five-day bench trial beginning May

1, 1995. The court took judicial notice of a number of census

tables, which included information from the 1990 census of the

entire population and information from questions posed to a smaller

sample population. The plaintiffs presented several witnesses,

including four experts. The defendants called no expert witnesses.

On the last day of trial, plaintiff Victor Diaz, proceeding pro se,

moved in open court that the district court dismiss him as a party.

The district court denied that motion.

The district court concluded that the plaintiffs had failed to

carry their burden of proof on the § 2 vote dilution claim because

they failed to establish any of the three preconditions and to

satisfy the totality of the circumstances prong, as required by

Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25

(1986). The court further concluded that the plaintiffs had failed
to show intentional discrimination, which was fatal to their § 1981

and § 1983 claims. Accordingly, the court entered judgment in

favor of the defendants.

On appeal, the plaintiffs have abandoned their § 1981 and §

1983 claims, raising only the question of whether the district

court correctly held that the plaintiffs failed to prove a § 2

violation. Additionally, Diaz appeals from the district court's

refusal to dismiss him from the action.

II. STANDARD OF REVIEW

 We review a district court's findings of § 2 vote dilution

for clear error. See Gingles, 478 U.S. at 79, 106 S.Ct. at 2781.

Deference is afforded the district court's findings "due to its

"special vantage point' and ability to conduct an "intensely local

appraisal of the design and impact of' a voting system." Lucas v.

Townsend, 967 F.2d 549, 551 (11th Cir.1992) (quoting White v.

Regester, 412 U.S. 755, 769, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314

(1973)). However, we will correct a district court's errors of law

and its findings of fact based upon misconceptions of law. See

United States v. Jones, 57 F.3d 1020, 1022 (11th Cir.1995) (citing

Meek v. Metropolitan Dade County, Fla., 985 F.2d 1471, 1481 (11th

Cir.1993)).

 We review for abuse of discretion a district court's decision

whether to grant a voluntary dismissal. See Fisher v. Puerto Rico

Marine Management, Inc., 940 F.2d 1502, 1502-03 (11th Cir.1991)

(citation omitted).

III. ANALYSIS

A. THE SECTION 2 VOTE DILUTION CLAIM
1. The Gingles Framework

 Section 2(a) of the Voting Rights Act states:

No voting qualification or prerequisite to voting or standard,

practice, or procedure shall be imposed or applied by any

State or political subdivision in a manner which results in a

denial or abridgement of the right of any citizen of the

United States to vote on account of race or color....

42 U.S.C. § 1973(a). Section 2(b) further explains:

A violation of [§ 2(a) ] is established if, based on the

totality of circumstances, it is shown that the political

processes leading to nomination or election in the State or

political subdivision are not equally open to participation by

members of a class of citizens protected by [§ 2(a) ] in that

its members have less opportunity than other members of the

electorate to participate in the political process and to

elect representatives of their choice.

Id. at § 1973(b). As Justice O'Connor explained in Thornburg v.

Gingles, "the essence of a vote dilution claim is that the State

has created single-member or multimember districts that

unacceptably impair the minority group's ability to elect the

candidates its members prefer." 478 U.S. at 88, 106 S.Ct. at 2786

(O'Connor, J., concurring in the judgment).

 The Gingles Court set forth three prerequisites for

establishing a § 2 vote dilution claim. Plaintiffs must establish

that:

(1) the minority group is "sufficiently large and geographically

compact to constitute a majority in a single-member district";

(2) the minority group is "politically cohesive"; and

(3) "the white majority group votes sufficiently as a bloc to

enable it ... to defeat the minority's preferred candidate."

Id. at 50-51, 106 S.Ct. at 2766-67 (citations omitted). These

three Gingles factors are "necessary preconditions" to a § 2 vote

dilution claim. Id. at 50, 106 S.Ct. at 2766.

 Proving the three preconditions is not the end of the story,
however. As the Supreme Court explained in a later case:

if Gingles so clearly identified the three [preconditions] as

generally necessary to prove a § 2 claim, it just as clearly

declined to hold them sufficient in combination, either in the

sense that a court's examination of relevant circumstances was

complete once the three factors were found to exist, or in the

sense that the three in combination necessarily and in all

circumstances demonstrated dilution.

Johnson v. De Grandy, 512 U.S. 997, 1011, 114 S.Ct. 2647, 2657, 129

L.Ed.2d 775 (1994). As § 2 mandates, a court must look to the

totality of the circumstances to determine whether there is

impermissible vote dilution. Gingles, 478 U.S. at 79, 106 S.Ct. at

2781; De Grandy, 512 U.S. at 1011, 114 S.Ct. at 2657. Borrowing

from the Senate report accompanying the 1982 Amendments to the

Voting Rights Act, Gingles identified a list of factors that may

under the totality of the circumstances support a claim of vote

dilution. See Gingles, 478 U.S. at 37, 106 S.Ct. at 2759 (quoting

S.Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N.

177, 206-07).

The district court correctly utilized the Gingles framework in

analyzing plaintiffs' § 2 claim. After examining the evidence, the

court concluded that the plaintiffs had failed to establish any of

the Gingles preconditions: numerosity and compactness, minority

cohesion, or bloc voting. The court further concluded that, under

the totality of the circumstances, plaintiffs had failed to prove

their § 2 vote dilution claim. Because we hold that the district

court correctly determined that plaintiffs had failed to establish

the first Gingles precondition, numerosity and compactness, it is

unnecessary for us to review its other determinations.

2. The First Gingles Precondition
 In their attempt to establish the first Gingles precondition,

the plaintiffs offered Jerry Wilson, who testified as to the

demographics of Miami Beach. Based on 1990 census data, Wilson

explained that the Hispanic population of Miami Beach was

concentrated in the southern and northern ends of the city. He

also produced a plan, called Plan 7-C, that divides Miami Beach

into seven districts of approximately equal population:

Plan 7-C

District

Total

 Pop

White

 Pop

Black

 Pop

Hisp.

 Pop

Hisp.

 %

Total

 VAP

White

 VAP

Black

 VAP

Hisp.

 VAP

Hisp.

 %

 1 13,594 4,125 705 8,669 63.77% 11,817 3,850 527 7,362 62.30%

 2 13,509 4,340 600 8,408 62.24% 11,420 3,420 452 7,021 61.48%

 3 13,213 7,366 351 5,374 40.67% 12,195 7,043 307 4,747 38.93%

 4 13,224 8,149 169 4,723 35.72% 11,547 7,184 153 4,060 35.16%

 5 13,027 10,010 139 2,700 20.73% 11,288 8,770 123 2,263 20.05%

 6 13,432 6,455 464 6,289 46.82% 11,665 5,931 375 5,184 44.44%

 7 12,640 4,276 930 7,179 56.80% 9,626 3,508 611 5,310 55.16%

Total 92,639 44,721 3,358 43,342 79,558 40,016 2,548 35,947

—————

As the table indicates, in three of the districts, Districts 1, 2,

and 7, Hispanics constitute a majority of the population and of the

voting age population. Based on this proposed plan, Wilson

concluded that the Hispanic population of Miami Beach is large

enough and compact enough to constitute a majority in a

single-member district.

As the district court found and Wilson admitted, however, he

did not take into account the significant disparity between

Hispanic and non-Hispanic citizenship rates. Citizenship data is

available for the City of Miami Beach from the Census Bureau

through a separate special tabulation. Synthesizing data from
Table 182 and Table 167, contained in the 1990 Census of

Population, Social and Economic Characteristics, Florida, produces

the following citizenship rates, which demonstrate a significant

disparity between Hispanic and non-Hispanic citizenship rates:

 Hispanic citizenship rate 50.16%

Non-Hispanic citizen ship rate 88.18%

Applying these rates to Districts 1, 2, and 7 of Plan 7-C yields

the following results:

 

District

 Non

Hispan

ic

 VAP

 Non

Hispani

c

Cit.Rate

 Non

Hispan

ic

Citizen 

 

VAP

Hispan

ic

 VAP

Hispan

ic

Cit.Rat

e

Hispan

ic

Citizen

 VAP

 % of 

 Hispanic

Citizen

VAP

 1 4455

88.18%

 3928 7362

50.16

%

 3692 48.45%

 2 4399

88.18%

 3879 7021

50.16

%

 3521 47.58%

 7 4316

88.18%

 3805 5310

50.16

%

 2663 41.17%

—————

As the final column of this table indicates, when citizenship is

taken into account, there is no Hispanic majority in any of the

districts. Accordingly, the district court concluded that the

plaintiffs failed to meet the first Gingles precondition because,

among other reasons, they failed to consider citizenship rates in

drawing Plan 7-C.
 3

Insofar as it is relevant to our current discussion, Chief

Judge Tjoflat's concurrence referred to and adhered to the views

expressed in the prior panel opinion, Solomon v. Liberty County,

Florida, 865 F.2d 1566, 1574 (11th Cir.1988), vacated and reh'g

en banc granted, 873 F.2d 248 (11th Cir.1989), which he had

authored. Accordingly, the citations in the following discussion

to the views of Chief Judge Tjoflat, and the four judges who

joined him in Solomon, are to that prior panel opinion. 

Plaintiffs contend that citizenship should not be taken into

account. To support that position, plaintiffs rely on Solomon v.

Liberty County, Florida, 899 F.2d 1012 (11th Cir.1990) (en banc).

In Solomon, this Court unanimously held that the plaintiffs had

established the three Gingles preconditions. The court split

evenly, however, on the question of the legal significance of that

accomplishment. Judge Kravitch wrote a special concurrence, in

which four judges joined. Then-Chief Judge Tjoflat also wrote a

special concurrence in which four judges joined.3 For present

purposes, the differences that split the Court in Solomon are not

relevant.

What is relevant is that every member of the Solomon Court

agreed that the district court had erred in focusing on registered

voter statistics instead of voting age population statistics. See

Solomon, 899 F.2d at 1018 (Kravitch, J., specially concurring);

Solomon v. Liberty County, Florida, 865 F.2d 1566, 1574 (11th

Cir.1988) (Tjoflat, J.), vacated and reh'g en banc granted, 873

F.2d 248 (11th Cir.1989). Because blacks made up 51% of the voting

age population of the proposed district, the first Gingles

precondition was satisfied even though blacks made up only 46% of

the registered voters of that district. See Solomon, 899 F.2d at

1018 (Kravitch, J., specially concurring) and Solomon, 865 F.2d at
1574 (Tjoflat, J.)

The plaintiffs in this case contend that Solomon requires that

voting age population statistics be used in § 2 analysis instead of

voting age citizenship population statistics. Of course, Solomon

did not address that issue, because there was no indication in that

case that there was any disparity between black and white

citizenship rates. Nor is there likely to be any disparity in

citizenship rates, except in a case, such as this one, where the

minority population includes a substantial number of immigrants.

 Because the question was not presented in Solomon, the

holding in that case could not and does not preclude a holding in

this case that refinement with citizenship data is appropriate,

where that data is available and indicates a significant difference

in the citizenship rates of the majority and minority populations.

The reasoning in Solomon does not preclude such a holding, either.

Both opinions in that case reasoned that voting age population

statistics were preferable to registered voter statistics because

minority voter registration might well have been suppressed by the

absence of any prospect of electing representatives of the

minority's choice. 899 F.2d at 1018 (Kravitch, J., specially

concurring) ("An at-large election system that frustrates the

ability of minorities to elect their chosen representatives will

naturally reduce the incentive for blacks to register to vote.");

865 F.2d at 1574 (Tjoflat, J.) ("Minority voter registration

figures are inherently unreliable measures in vote dilution cases

because the very lack of minority political power responsible for

bringing of the section 2 action may also act to depress voter
registration."). The same cannot be said of citizenship. It is

far more difficult for an immigrant to become a citizen than it is

for a citizen to register to vote. Given all the other benefits

citizenship entails, it is unlikely that a significant number of

the non-citizen Hispanic residents of the City of Miami Beach would

have become citizens if only the City had been districted in a

manner making it possible for Hispanics to elect a representative

of their choice to the City Commission.

We find support for consideration of citizenship data in

Supreme Court opinions. The Court has thus far declined to answer

directly the question of "which characteristic of minority

populations (e.g., age, citizenship) ought to be the touchstone for

proving a dilution claim." De Grandy, 512 U.S. at 1008, 114 S.Ct.

at 2656. However, the Court has said that the foundational inquiry

for the first Gingles precondition is whether "the minority has the

potential to elect a representative of its own choice in some

single-member district." Growe v. Emison, 507 U.S. 25, 39, 113

S.Ct. 1075, 1084, 122 L.Ed.2d 388 (1993) (citation omitted and

emphasis added). As the Gingles court explained:

The reason that a minority group making [a vote dilution]

challenge must show, as a threshold matter, that it is

sufficiently large and geographically compact to constitute a

majority in a single-member district is this: Unless minority

voters possess the potential to elect representatives in the

absence of the challenged structure or practice, they cannot

claim to have been injured by that structure or practice....

Thus, if the minority group is spread evenly throughout a

multimember district, or if, although geographically compact,

the minority group is so small in relation to the surrounding

white population that it could not constitute a majority in a

single-member district, these minority voters cannot maintain

that they would have been able to elect representatives of

their choice in the absence of the multimember electoral

structure.
478 U.S. at 50 n. 17, 106 S.Ct. at 2766 n. 17 (emphasis added).

See Romero v. City of Pomona, 883 F.2d 1418, 1425 (9th Cir.1989)

(explaining that the Gingles opinion "repeatedly makes reference to

effective voting majorities, rather than raw population totals, as

the touchstone for determining geographical compactness" (footnote

omitted)).

 In order to elect a representative or have a meaningful

potential to do so, a minority group must be composed of a

sufficient number of voters or of those who can readily become

voters through the simple step of registering to vote. In order to

vote or to register to vote, one must be a citizen. We agree with

the Ninth Circuit that because "a section 2 claim will fail unless

the plaintiff can establish that the minority group constitutes an

effective voting majority in a single-member district," Romero, 883

F.2d at 1426, the proper statistics for deciding whether a minority

group is sufficiently large and geographically compact is voting

age population as refined by citizenship. Id. at 1424-26. Of

course, the requirement that voting age population data be further

refined by citizenship data applies only where there is reliable

information indicating a significant difference in citizenship

rates between the majority and minority populations. As we have

previously indicated, such a disparity is unlikely except in areas

where the population includes a substantial number of immigrants.

We turn now to the question of whether such information exists in

this case.

3. The Citizenship Information for Miami Beach

Plaintiffs attempt to justify their expert's decision not to
use citizenship information by calling into question the accuracy

of the data itself. The Miami Beach citizenship information from

the Census Bureau was not obtained by the door-to-door census but

is instead based on questions posed to a smaller segment of the

population. The citizenship information (as well as some other

information) is extrapolated from this smaller sample population.

Because the citizenship information is based upon a sample

population, it cannot be as precise as the census data, which is

based upon the entire population. For example, according to the

sample data, there are 42,888 Hispanics in Miami Beach, as compared

to 43,342 as shown in the door-to-door census data. Plaintiffs

contend that because the sample data underestimates the Hispanic

population and simultaneously overestimates the white and black

population, mixing the sample data with the census data invites

error.

If mixing the two sets of data is an invitation for error, it

is an invitation plaintiffs themselves extended. In addressing the

totality of the circumstances, plaintiffs offered income, poverty

and education statistics showing that Hispanics in Miami Beach were

poorer and less educated than their white counterparts. All of

those statistics came from sample data. One of the key census

tables containing citizenship data, Table 182, was one the district

court took judicial notice of at the plaintiffs' request. We will

not allow plaintiffs to take inconsistent positions by touting the

sample data when it suits their purposes and decrying the validity

of that data when it does not.

Even if plaintiffs themselves had not introduced and relied on
 4

Plaintiffs stated at oral argument that the sample data for

Miami Beach was based upon questions posed to approximately 10%

of the population, which is a relatively large sample size. 

the sample data, we would nevertheless uphold the district court's

consideration of the citizenship statistics, even though those

statistics are based on sample data. The use of sample data is a

long-standing statistical technique, whose limits are known and

measurable. We will not reject the citizenship statistics solely

because they are based on sample data without some indication that

the sample was tainted in some way. There were no arguments before

the district court that the sample was skewed in a statistically

significant way due to improper sampling method, small sample size,

or sheer random error.4

 The plaintiffs contend that the sample's

underestimation of the Hispanic population should cause the sample

data to be rejected, but plaintiffs fail to show that that

underestimation is statistically significant. In fact, there is a

close correlation between the door-to-door census data and the

sample data. For example, with regard to figures for the Hispanic

population (43,342 figure from the census data compared to 42,888

figure from the sample data), the difference amounts to less than

one percent. We conclude that the citizenship information for

Miami Beach is reasonably accurate and demonstrates a significant

disparity between Hispanic citizenship rates and non-Hispanic

citizenship rates. In order to obtain an accurate assessment of

Hispanic voting strength, this reasonably accurate citizenship

information should be taken into account.

The plaintiffs offer two other arguments against using the

citizenship information. First, the sample data, including the
citizenship information, is available only at the block group

level, not at the block level, which is the smallest population

group. Plaintiffs contended at oral argument that using the block

group data would force Wilson to make several assumptions when

drawing the map and result in a less exact map. However, Wilson

admitted in his testimony at trial that it was possible to create

a district map of Miami Beach using block groups. Accordingly, we

reject this argument.

Second, the plaintiffs contend that the district court erred

in not accepting Wilson's plan disregarding citizenship, because

the defendants presented no expert testimony explaining how or why

citizenship should be taken into account. Putting aside for the

moment the fact that the district court as factfinder was free to

reject Wilson's expert testimony, even if it was uncontradicted,

see Gregg v. U.S. Industries, Inc., 887 F.2d 1462, 1469-70 (11th

Cir.1989), plaintiffs misconstrue the issue. Whether citizenship

should be taken into account for the first Gingles precondition is

a question of law. See De Grandy, 512 U.S. at 1007-10, 114 S.Ct.

at 2655-56. Wilson's testimony, uncontradicted or not, and any

failure of the defendants to put on testimony, have no bearing on

the resolution of that legal question.

Plaintiffs argue in the alternative that, assuming citizenship

rates should be taken into account, Plan 7-C still allows for a

majority Hispanic district. However, that argument is based upon

application of citizenship rates to raw population figures, not to

voting age population. As we have explained, both voting age and

citizenship are to be considered in determining whether the
minority group has the potential to elect its preferred

representatives. When both citizenship and voting age are taken

into account, plaintiffs cannot make the requisite showing that

Hispanics will constitute a majority in a single-member district.

Plaintiffs point to one other piece of evidence in their

effort to show that the district court erred in deciding that the

first Gingles precondition had not been met. Wilson apparently

created another map of Miami Beach on which he drew a single

district with a 66% majority Hispanic VAP. Neither the map nor the

chart giving the racial breakdown of the single district were

introduced into evidence. However, Wilson testified about the

single district, and we will consider this evidence to the extent

he testified about it. In any event, Wilson stopped short after

this first district and never drew the other six districts. There

is no information as to what the six remaining districts might look

like, where they would be located, or what their racial and ethnic

makeup might be. Nor is there information about how many people

reside in the district or how the single district compares in

population size to the remaining six districts. Thus, this is not

really a plan, but only a part of one.

 As this Court has interpreted the first Gingles precondition,

"plaintiffs in vote dilution cases must demonstrate that the

challenged system suppressed minority voting strength in comparison

to some alternative, feasible benchmark system." Nipper v. Smith,

39 F.3d 1494, 1531 (11th Cir.1994) (en banc majority opinion)

(citing Holder v. Hall, 512 U.S. 874, 114 S.Ct. 2581, 129 L.Ed.2d

687 (1994)), cert. denied, --- U.S. ----, 115 S.Ct. 1795, 131
L.Ed.2d 723 (1995); see also SCLC v. Sessions, 56 F.3d 1281, 1289

(11th Cir.1995) (en banc) ("[P]laintiffs must show that an

appropriate remedy can be fashioned" as part of first Gingles

precondition), cert. denied, --- U.S. ----, 116 S.Ct. 704, 133

L.Ed.2d 660 (1996). A district court cannot implement an

incomplete plan, containing only a single district, with the rest

of the map left blank. Because this plan does not provide an

"alternative, feasible benchmark system," plaintiffs' testimony

regarding this incomplete plan fails to meet the first Gingles

precondition.

To summarize, we conclude that the first Gingles precondition

requires the consideration of citizenship information to determine

whether a minority has the potential to elect its preferred

representative in a single-member district, when that information

is reasonably accurate and demonstrates a significant difference

between minority and majority citizenship rates. When citizenship

rates are applied to plaintiffs' Plan 7-C, the plan fails to create

any districts where Hispanics constitute a majority of potential

voters. We agree with the district court that plaintiffs have

failed to establish the first Gingles precondition. Because we

hold that plaintiffs' § 2 vote dilution claim fails with the first

Gingles precondition, we do not address the remainder of the

district court's findings of fact and conclusions of law concerning

the claim.

B. THE RULE 41 DISMISSAL

 Plaintiff Diaz appeals from the district court's refusal to

grant his motion for voluntary dismissal pursuant to Federal Rule
of Civil Procedure 41. Diaz contends that his motion to dismiss

was a Rule 41(a)(1)(ii) stipulation. That rule provides the

following:

[A]n action may be dismissed by the plaintiff without order of

court ... by filing a stipulation of dismissal signed by all

parties who have appeared in the action.

Fed.R.Civ.P. 41(a)(1)(ii). Diaz's motion fails to meet the

requirement of the rule in two ways. First, the motion was not

made in writing but was made orally in open court. Second, even if

an oral motion could satisfy the rule, there is no indication in

the record that anyone besides Diaz agreed to the motion. The rule

is clearly stated: a voluntary dismissal by stipulation is

applicable only if all the parties sign off on it. Diaz was not

entitled to a voluntary dismissal by stipulation.

 Rule 41(a)(2) provides the other avenue for a voluntary

dismissal. It states:

[A]n 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.

Fed.R.Civ.P. 41(a)(2). If Diaz's motion to dismiss is considered

as a Rule 41(a)(2) motion, it requires leave of the court and is

subject to the court's discretion. We review the district court's

decision on a Rule 41(a)(2) dismissal only for abuse of discretion.

See Fisher v. Puerto Rico Marine Management, Inc., 940 F.2d 1502,

1503 (11th Cir.1991). We can find nothing in the record that

indicates the district court's refusal to grant his motion was an

abuse of discretion.

IV. CONCLUSION

For the reasons set forth above, we AFFIRM the judgment of the
district court.