United States District Court, M.D. Pennsylvania
May 18, 2005.
FRANCIS ANTHONY LOMBARDO, Plaintiff
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
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
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,
IT IS HEREBY ORDERED THAT:
1. Plaintiff's motion for discontinuance (Record
document no. 19) is construed as a motion for
voluntary dismissal under Federal Rule Civil
2. The Plaintiff's motion is granted without
3. The Clerk of Court is directed to close this case.