Phillips v. Boen et al, No. 2:2020cv02237 - Document 14 (W.D. Ark. 2021)

Court Description: OPINION AND ORDER; Plaintiff's motion 10 for partial dismissal is GRANTED and his federal civil rights claims are DISMISSED WITH PREJUDICE. Further Plaintiff's motion to remand 11 is GRANTED and this case is remanded to the Circuit Court of Crawford County, Arkansas. Signed by Honorable P. K. Holmes III on January 21, 2021. (lw)

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Phillips v. Boen et al Doc. 14 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION JUSTIN PHILLIPS PLAINTIFF v. No. 2:20-CV-02237 ANTHONY BOEN, individually and in his official capacity, and MASON BERRY, in his individual capacity DEFENDANTS OPINION AND ORDER Before the Court is Plaintiff’s motion (Doc. 11) to remand and brief (Doc. 12) in support. Defendant Anthony Boen filed a response (Doc. 13) in opposition. The motion will be granted. This case was removed from the Circuit Court of Crawford County, Arkansas by Defendant Boen (in his official capacity), with consent of all defendants. Plaintiff subsequently attempted to voluntarily dismiss all federal civil rights claims by filing a notice (Doc. 10) of dismissal of those claims with prejudice. Such notices of dismissal must be filed before any defendant answers, or otherwise the Plaintiff requires Court approval, on terms it “considers proper,” to dismiss a claim. Fed. R. Civ. P. 41(a)(1)(A)(i), (2). Defendant Boen already answered (Docs. 7 and 8) in both his individual and official capacities, so the Court will construe Plaintiff’s notice of dismissal as a motion to dismiss. Because Plaintiff seeks to dismiss his federal civil rights claims with prejudice and pursue only his state civil rights on remand, the Court sees no good reason that these terms should be considered anything other than proper. The motion to dismiss, with prejudice, all federal civil rights claims against these Defendants will be granted. Because the Court is exercising only supplemental jurisdiction over the remaining state law claims, dismissal without prejudice of those claims under 28 U.S.C. § 1367(c)(3) might be proper. However, because Plaintiffs seek remand of an action under 28 U.S.C. § 1447(c) on the 1 Dockets.Justia.com basis that the Court now lacks subject matter jurisdiction, the Court will instead remand. IT IS THEREFORE ORDERED that Plaintiff’s motion (Doc. 10) for partial dismissal is GRANTED and his federal civil rights claims are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiff’s motion to remand (Doc. 11) is GRANTED and this case is remanded to the Circuit Court of Crawford County, Arkansas. IT IS SO ORDERED this 21st day of January, 2021. /s/P. K. Holmes, ΙΙΙ P.K. HOLMES, III U.S. DISTRICT JUDGE 2

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