Anderson v. McCaleb et al, No. 6:2009cv00282 - Document 83 (E.D. Tex. 2012)

Court Description: MEMORANDUM OPINION AND ORDER OF DISMISSAL. Plaintiffs oral motion to dismiss, made in open court after jury selection, is GRANTED. This civil action is DISMISSED with prejudice on the motion of the Plaintiff. Any and all motions which may be pending in this civil action are hereby DENIED. Signed by Magistrate Judge John D. Love on 12/04/12. cc:attys 12-04-12(mll, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION DEWAYNE ANDERSON § v. § J.B. McCALEB, ET AL. § CIVIL ACTION NO. 6:09cv282 MEMORANDUM OPINION AND ORDER OF DISMISSAL This lawsuit was called for jury selection on December 3, 2012. After the jury had been selected and dismissed for the day, pending the resumption of trial the following day, the Plaintiff Dewayne Anderson moved to dismiss his lawsuit. The Court discussed with Anderson the ramifications of this dismissal, including the fact that he would not be able to bring his claims again, and Anderson maintained that he wished to dismiss the case. Rule 41(a), Fed. R. Civ. P., permits plaintiffs to dismiss their actions without need for leave of court by either filing a notice of dismissal prior to service of a responsive pleading or by filing a stipulation of dismissal signed by all parties. Rule 41(a)(2), Fed. R. Civ. P., states that except as provided in Rule 41(a)(1), an action shall not be dismissed at the plaintiff's instance except upon order of court and upon such terms as the court deems proper. In this case, Anderson voluntarily moved to dismiss his case after jury selection, and the Court informed him that such a dismissal would prevent him from bringing his claims again. The Court has determined that Anderson s motion is meritorious and should be granted. It is accordingly ORDERED that the Plaintiff s oral motion to dismiss, made in open court after jury selection, is GRANTED. The above-styled civil action be and hereby is DISMISSED with prejudice (i.e. not to be filed again) on the motion of the Plaintiff. Rule 41(a), Fed. R. Civ. P. Finally, it is 1 ORDERED that any and all motions which may be pending in this civil action are hereby DENIED. SIGNED this 19th day of December, 2011. So ORDERED and SIGNED this 4th day of December, 2012. 2

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