United States District Court, E.D. Michigan, Southern Division
R. GRAND MAGISTRATE JUDGE
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,
OVERRULING DEFENDANT'S OBJECTIONS, GRANTING
PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL, DISMISSING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS MOOT, AND
DISMISSING COMPLAINT WITHOUT PREJUDICE
M. LAWSON UNITED STATES DISTRICT JUDGE.
Larry Ball filed a complaint alleging civil rights violations
against three prison guards at Michigan's Adrian
Correctional Facility. He contended that defendant Perkins
sexually harassed him over several months, and corrections
officer Udel and investigator Johnson threatened to retaliate
against him when he complained. The Court referred the case
to Magistrate Judge David R. Grand for pretrial management.
After all of the defendants were served with process, Ball
filed a notice of voluntary dismissal without prejudice. Udel
and Johnson did not respond to the complaint, but Perkins had
filed a motion for summary judgment in the meantime. This
Court dismissed the case against the non-responding
defendants, but denied the request as to Perkins because he
had responded with his summary judgment motion. See
Fed. R. Civ. P. 41(a)(1)(A)(i) (allowing a plaintiff to
dismiss his case voluntarily with a notice filed
“before the opposing party serves either an answer or a
motion for summary judgment”).
then filed a motion to dismiss without prejudice under Rule
41(a)(2). Perkins did not respond to it. Judge Grand filed a
report on September 12, 2017 recommending that Ball's
motion be granted, Perkins's summary judgment motion be
dismissed as moot, and the case be dismissed without
prejudice. Remarkably, Perkins filed objections to the
recommendation, contending that he is entitled to have the
motion for summary judgement addressed on the merits. He
concedes that he did not respond to Ball's motion for
voluntary dismissal, but he believes that his earlier-filed
summary judgment motion should have served as a
“response, ” as the Court should have inferred
that a dismissal without prejudice was not acceptable to him.
The plaintiff filed a response to the objections.
filing of timely objections to a report and recommendation
requires the court to “make a de novo
determination of those portions of the report or specified
findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1); see also United
States v. Raddatz, 447 U.S. 667 (1980); United
States v. Walters, 638 F.2d 947 (6th Cir. 1981). This
de novo review requires the court to re-examine all
of the relevant evidence previously reviewed by the
magistrate judge in order to determine whether the
recommendation should be accepted, rejected, or modified in
whole or in part. 28 U.S.C. § 636(b)(1).
filing of objections provides the district court with the
opportunity to consider the specific contentions of the
parties and to correct any errors immediately, ”
Walters, 638 F.2d at 950, enabling the court
“to focus attention on those issues - factual and legal
- that are at the heart of the parties' dispute, ”
Thomas v. Arn, 474 U.S. 140, 147 (1985). As a
result, “‘[o]nly those specific objections to the
magistrate's report made to the district court will be
preserved for appellate review; making some objections but
failing to raise others will not preserve all the objections
a party may have.'” McClanahan v. Comm'r of
Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting
Smith v. Detroit Fed'n of Teachers Local 231,
829 F.2d 1370, 1373 (6th Cir. 1987)).
Court has reviewed the pleadings, the report and
recommendation, the defendant's objections, and the
plaintiff's response, and has made a de novo
review of the record in light of the parties'
noted above, a plaintiff may not dismiss his own case by mere
notice if the defendant has filed an answer or summary
judgment motion. Fed.R.Civ.P. 41(a)(1)(A)(i). Perkins has not
answered the complaint, and therefore he is technically in
default. See Fed. R. Civ. P. 12(a)(1)(A)(i),
(a)(4)(A); Buchanan v. Gulfport Police Dep't,
No. 08-1299, 2016 WL 6083518, at *2 (S.D.Miss. Feb. 3, 2016)
(“There is no provision in the Federal Rules that
permits a defendant to file a motion for summary judgment in
lieu of an Answer.”). Although Perkins's summary
judgment motion is not a sufficient substitute for an answer
to the complaint, it does trigger the requirement that the
plaintiff seek the Court's (or the opponent's)
permission to dismiss his case voluntarily. Fed.R.Civ.P.
41(2); see also Michigan Surgery Inv., LLC v. Arman,
627 F.3d 572, 578 (6th Cir. 2010) (Batchelder, C.J.,
plaintiff's motion, the Court may dismiss the case
without prejudice “on terms that the court considers
proper.” Fed.R.Civ.P. 41(2). A court's primary
consideration in ruling on a Rule 41(a)(2) motion is to
protect the nonmoving party from unfair treatment. Grover
v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir.
1994). A court has the discretion to grant the motion if the
defendant would not suffer “‘plain legal
prejudice' as a result of a dismissal without prejudice,
as opposed to facing the mere prospect of a second
lawsuit.” Ibid. (quoting Cone v. W.
Virginia Pulp & Paper Co., 330 U.S. 212, 217
(1947)). When assessing potential prejudice, courts should
consider 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.” Id. at 718 (citing
Kovalic, 855 F.2d at 474). These factors are merely
a guide, and the plaintiff need not prevail on all of them;
nor is the district court required to make any findings on
the sufficiency of the plaintiff's explanation for
dismissal. Rosenthal v. Bridgestone/Firestone, No.
05-4451, 217 F. App'x 498, 502 (6th Cir. 2007) (citing
Kovalic, 855 F.2d at 474 (quotation marks omitted)).
Perkins has not alleged that he has any incurred costs or
expended effort in defending the case so far. And even if the
defendant had incurred substantial costs and expended effort
in preparing for trial, the work product could be used in a
later suit brought by the plaintiff. See Wargo v.
Jungels, 2012 WL 1060094 (E.D. Mich. 2012); see also
Rosenthal, 217 F. App'x at 502; Brown v.
Baeke, 413 F.3d 1121, 1126 (10th Cir. 2005) (finding
that the mere prospect of a second suit, standing alone, does
not establish plain legal prejudice, based in part on
“the ability of the parties to use discovery in the new
there been any delay by the plaintiff. The complaint was
filed on April 17, 2017, and the plaintiff filed the motion
for dismissal on August 7, 2017. The time line in this case
can be compared favorably to other cases where courts allowed
a plaintiff to dismiss a case without prejudice, where the
dismissal occurred a year or more after the lawsuit was
initiated. Rosenthal, 217 F. App'x at 502;
Oliver v. Vasbinder, No. 08-13951, 2009 WL 4584102
(E.D. Mich. Dec. 2, 2009); Martin v. Warden, No.
12-458, 2014 WL 1271020 (S.D. Ohio March 24, 2014); Combs
v. ITT Tech. Inst. No: 15-15, 2016 WL 3982520 (S.D. Ohio
July 22, 2014).
criticizes the four-month lapse before the plaintiff
attempted to terminate his lawsuit. But that interval does
not demonstrate an intent to delay the legal proceedings. The
lawsuit had not progressed substantially: even now, discovery
has not commenced, a scheduling order has not been entered,
and a trial date has not been set.
plaintiff explains, after he began preparing his motion to
dismiss without prejudice in July 2017, he attempted to seek
concurrence from the defendant's attorney via telephone.
Defense counsel refused to accept any of the three calls made
by the plaintiff. So the plaintiff mailed a copy of the
motion to the Court on July 31, 2017. On August 7, 2017, the
Court filed the plaintiff's motion for leave to dismiss
without prejudice under Rule 41(a)(2). By then, the plaintiff
had been transferred to another prison. He had sought advice
from a prison counselor, who told him that with the nature of
his alleged injury “and the high likelihood of being
paroled in November of 2017, it would be in his best interest
to dismiss his complaint . . . and file a new [case] upon
release.” At the time, there had been no appearance on
behalf of Perkins or any responsive pleadings.
the plaintiff did not receive timely notice of Perkins's
motion for summary judgment, because Perkins made improper
service to the plaintiff. He mailed his papers to the Carson
City Correctional Facility, instead of the Newberry
Correctional Facility where the plaintiff was housed at the
time. As a result, the plaintiff did not receive the motion
for summary judgment until July 14, 2017. The plaintiff's
motion to dismiss was sent to the Court on July 31, 2017. The
period of less than four ...