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United States District Court, M.D. Pennsylvania

May 18, 2005.

GENE FISCHI, ET AL, Defendants.

The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge



This pro se civil rights action was initiated by Francis Anthony Lombardo, an inmate presently confined at the Luzerne County Prison, Wilkes-Barre, Pennsylvania. Following service of the complaint, Defendants filed an answer with affirmative defenses on January 24, 2005.*fn1

  Presently pending is Plaintiff's "motion for discontinuance for above-captioned matter." Record document no. 19. Lombardo's one sentence motion requests that this Court "enter a discontinuance of action." Id.


  Rule 41(a) states in relevant part:

(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.
(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
  Since the Defendants have already filed an answer to the complaint, Lombardo is not entitled to voluntary dismissal under Rule 41(a)(1). However, Rule 41(a)(2) permits a court to grant a plaintiff's request for voluntary dismissal "upon order of the court and upon such terms and conditions as the court deems proper."

  The purpose of Rule 41(a)(2) is primarily to thwart voluntary dismissals by an originating party that would result in some clear legal prejudice to a defendant. United States v. Eighteen Various Firearms, 148 F.R.D. 530, 531 (E.D. Pa. 1993). Whether to grant or deny a party's motion for voluntary dismissal, however, lies entirely within the sound discretion of the court. Id.; Citizens Savs. Ass'n v. Franciscus, 120 F.R.D. 22, 24 (M.D. Pa. 1988).

  In the context of a Rule 41(a)(2) motion, the Court of Appeals for the Third Circuit has adopted the same liberal policy utilized in resolving a motion by a party seeking to amend its pleading under Fed.R.Civ.P. 15(a). In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 863 (3d Cir. 1990). Just as leave to amend should be granted freely, motions to voluntarily dismiss an action "should be allowed unless a defendant will suffer some prejudice other than the mere prospect of a second lawsuit." Id.; Shulley v. Mileur, 115 F.R.D. 50, 51 (M.D. Pa. 1987) (citing John Evans Sons, Inc. v. Majik Ironers, Inc., 95 F.R.D. 186, 190 (E.D. Pa. 1982)). Generally, a plaintiff should be permitted to discontinue his action upon appropriate terms even where his purpose is to commence new litigation upon the same issues in a forum allegedly more favorable to his claim. See Selas Corp. v. Wilshire Oil Co., 57 F.R.D. 3, 5 (E.D. Pa. 1972). "Plain legal prejudice . . . does not result simply when defendant faces the prospect of a second lawsuit or when plaintiff merely gains some tactical advantage. Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). The issue of whether a voluntary dismissal is prejudicial depends upon the circumstances of each case. Citizens Savs. Ass'n, 120 F.R.D. at 24.

  In the instant case, there is no indication that any of the Defendants will suffer any harm other than the possibility of having to address a future, similar lawsuit filed by the Plaintiff. This litigation is not at a particularly advanced stage and there has been relatively limited discovery. Consequently, under Shulley, there is no basis to deny the request for voluntary dismissal.

  Therefore, this Court will grant Lombardo's motion under Rule 41(a)(2) and the case will be dismissed without prejudice to his renewal of his claims. However, Plaintiff is notified that his action is subject to Pennsylvania's statute of limitations for a personal injury action. See Wilson v. Garcia, 471 U.S. 261, 276 (1985).


1. Plaintiff's motion for discontinuance (Record document no. 19) is construed as a motion for voluntary dismissal under Federal Rule Civil Procedure 42(a)(2).
2. The Plaintiff's motion is granted without prejudice.
3. The Clerk of Court is directed to close this case.

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