Opinion
C. A. 3:23-4713-JFA-SVH
04-18-2024
Kimberly M. Russell, Plaintiff, v. FN America, LLC, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
This matter comes before the court on the motion of FN America, LLC (“Defendant”) for judgment on the pleadings [ECF No. 22] and the motion of Kimberly M. Russell (“Plaintiff”) for voluntary dismissal [ECF No. 44].
Defendant filed its motion for judgment on the pleadings on November 13, 2023. As Plaintiff is proceeding pro se, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising her of the importance of the motion and of the need for her to file an adequate response by December 14, 2023. [ECF No. 26]. Plaintiff was specifically advised that if she failed to respond adequately, the motion may be granted. Id. Plaintiff was granted two extensions, and her final deadline for responding was extended to February 14, 2024. [ECF Nos. 37, 42]. Plaintiff filed no response.
On February 20, 2024, Plaintiff filed a motion for voluntary dismissal. [ECF No. 44]. Defendant filed a response on the same day, consenting to Plaintiff's desire to voluntarily dismiss the case, but arguing that the dismissal should be with prejudice for substantive reasons and because Plaintiff failed to respond to its motion for judgment on the pleadings. [ECF No. 45].
Pursuant to Fed.R.Civ.P. 41(a)(2) provides that “an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” Further, the rule states “Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.” Id. In this case, Defendant expended attorney resources responding to Plaintiff's complaint and filing a motion for judgment on the pleadings, to which Plaintiff failed to file a response before requesting dismissal. For these reasons, the undersigned recommends Plaintiff's motion for voluntary dismissal be granted, but recommends the dismissal be with prejudice. If the district judge accepts this recommendation, Defendant's motion for judgment on the pleadings will be rendered moot.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).