Chao v. Botes et al, No. 1:2008cv03668 - Document 81 (N.D. Ga. 2014)

Court Description: OPINION AND ORDER GRANTING Plaintiff's 80 Motion to Dismiss the Casewithout Prejudice with the conditions set out in this Order. IT IS FURTHER ORDERED that the Clerk is directed to CLOSE this case. Signed by Judge William S. Duffey, Jr on 10/7/2014. (anc)

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Chao v. Botes et al Doc. 81 Dockets.Justia.com and he has not informed the Court whether he will sign the Consent Order proposed by Plaintiff. Under Rule 41(a)(2) of the Federal Rules of Civil Procedure, an action may be dismissed without prejudice, at the plaintiff’s request, by Court Order on terms that the Court considers proper. Fed. R. Civ. P. 41(a)(2). The Court has broad discretion to determine whether to allow a voluntary dismissal under Rule 41(a)(2). Pontenberg v. Boston Scientific Corp., 252 F.3d 1253, 1255 (11th Cir. 2001). “In most cases, a voluntary dismissal should be granted unless the defendant will suffer clear legal prejudice, other than the mere prospect of a subsequent lawsuit, as a result.” McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857 (11th Cir. 1986). The Court concludes that Defendant’s inability to physically participate in the proceedings related to this case warrants a grant of voluntary dismissal under Rule 41(a)(2) of the Federal Rules of Civil Procedure. The Court finds that there is no basis to conclude that Defendant will be prejudiced by the dismissal of this action, and the “mere prospect of a subsequent lawsuit” does not constitute prejudice under Rule 41(a)(2) of the Federal Rules of Civil Procedure. McCants, 781 F.2d at 857. Plaintiff requests to reopen this case at a later date to file a Consent Order if Defendant agrees to the terms of the Consent Order proposed by Plaintiff. The 2 Court will allow the case to be reopened to consider a request to file the Consent Order if signed by Defendant, and whether it would be appropriate, at that time, to change the character of the dismissal. Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion to Dismiss the Case without Prejudice is GRANTED with the conditions set out in this Order [80]. IT IS FURTHER ORDERED that the Clerk is directed to CLOSE this case. SO ORDERED this 7th day of November, 2014. _______________________________ WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE 3

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