King v. Benton

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION ERNEST HOWARD KING, ) ) Plaintiff, ) ) v. ) CV422-157 ) WARDEN BROOKS L. ) BENTON, et al., ) ) Defendants. ) ORDER The Court previously directed that pro se plaintiff Ernest Howard King’s 42 U.S.C. § 1983 complaint be served upon the defendants. See doc. 22 at 6. Various proofs of service and waivers have been filed, but no defendant has yet appeared. See docs. 23-34. King has now filed a notice requesting to “voluntarily dismiss Defendant Beard from this civil action with [p]rejudice.” Doc. 35 at 1.

Federal Rule of Civil Procedure 41(a) governs a plaintiff's request to voluntarily dismiss an action. A plaintiff may voluntarily dismiss a complaint as a matter of right if the defendant consents to the dismissal or the notice is filed before the defendant serves either an answer or motion for summary judgment. Fed. R. Civ. P. 41(a)(1). A plaintiff's right to file a notice of dismissal under Rule 41(a)(1) before the service of an answer or a motion for summary judgment is “absolute” and “unconditional.” Matthews v. Gaither, 902 F.2d 877, 880 (11th Cir. 1990).

Accordingly, to the extent that King’s notice is effective without a court order, see Fed. R. Civ. P. 41(a)(1)(A); Absolute Activist Value Master Fund Ltd. v. Devine, 998 F.3d 1258, 1265 (11th Cir. 2021) (“[A] plaintiffs voluntary dismissal under Rule 41(a)(1)(A)Q) is effective immediately upon filing, and thus no further court order is necessary to effectuate the dismissal” Gnternal quotation marks and citation omitted)), his request is GRANTED. Doc. 35. Defendant Beard! is DISMISSED with prejudice. Cf. doc. 35 at 1; Fed. R. Civ. P. 41(a)(1)(B).

SO ORDERED, this 3rd day of April, 2023.

Lin.

CHRISTOPHER L. RAY UNITED STATES MAGISTRATE J UDGE SOUTHERN DISTRICT OF GEORGIA Although the Eleventh Circuit has established that Rule 41 does not permit the dismissal of “less than all claims in a lawsuit,” this Court has held that binding authority establishes that “Rule 41(a)(1) is a proper mechanism to dismiss less than all the parties to a controversy.” Jackson v. Equifax Information Servs., LLC, 2020 WL 476698, at *1-*2 (S.D. Ga. Jan. 29, 2020) (Hall, C.J.).