Filed: Oct. 31, 2016
Latest Update: Oct. 31, 2016
Summary: REPORT AND RECOMMENDATION ELIZABETH M. TIMOTHY , Chief Magistrate Judge . This cause is before the court on Petitioner's motion to voluntarily dismiss (ECF No. 9). As grounds for his request, Petitioner states that he believes it is in his best interest to dismiss his habeas petition ( id. ). He requests that the dismissal be without prejudice ( id. ). Rule 41 of the Federal Rules of Civil Procedure provides, in relevant part: (a) Voluntary Dismissal. (1) By the Plaintiff. (A) With
Summary: REPORT AND RECOMMENDATION ELIZABETH M. TIMOTHY , Chief Magistrate Judge . This cause is before the court on Petitioner's motion to voluntarily dismiss (ECF No. 9). As grounds for his request, Petitioner states that he believes it is in his best interest to dismiss his habeas petition ( id. ). He requests that the dismissal be without prejudice ( id. ). Rule 41 of the Federal Rules of Civil Procedure provides, in relevant part: (a) Voluntary Dismissal. (1) By the Plaintiff. (A) Witho..
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REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, Chief Magistrate Judge.
This cause is before the court on Petitioner's motion to voluntarily dismiss (ECF No. 9). As grounds for his request, Petitioner states that he believes it is in his best interest to dismiss his habeas petition (id.). He requests that the dismissal be without prejudice (id.).
Rule 41 of the Federal Rules of Civil Procedure provides, in relevant part:
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. . . .
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
Fed. R. Civ. P. 41(a).
Because Respondent served an answer (ECF No. 7), and a stipulation of dismissal has not been filed, this action may be dismissed only by court order. See Fed. R. Civ. P. 41(a)(2). In light of Petitioner's request, the court deems it proper to dismiss this case without prejudice.
Accordingly, it is respectfully RECOMMENDED:
That Petitioner's motion to voluntarily dismiss (ECF No. 9) be GRANTED and this action dismissed without prejudice.
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only, and does not control. A copy of objections shall be served upon all other parties. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a report and recommendation, that party waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
