06-21-10_Notice of Voluntary Dismissal

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06-21-10_Notice of Voluntary Dismissal
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  1 IN THE UNITED STATES DISTRICT COURT   IN AND FOR THE SOUTHERN DISTRICT OF FLORIDA  SOUTH FLORIDA TEA PARTY, INC.,A Florida non-profit corporation, et al.,Plaintiffs,v. CASE NO.: 10-80062-CV-MARRA/JOHNSONTEA PARTY, et al.Defendants._________________________________/  PLAINTIFF NAVARRE PATRIOTS’NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE 1  Plaintiff, NAVARRE PATRIOTS, pursuant to Rule 41(a)(1)(A)(i) or alternativelypursuant to 42(a)(2) of the Federal Rules of Civil Procedure, hereby gives notice of its voluntarydismissal of all claims asserted by it, without prejudice, in the above-entitled matter.Specifically, Rule 41(a)(1)(A)(i) sets out that a Plaintiff may voluntarily dismiss itsclaims without prejudice and without a Court Order by notice at any time prior to the Defendantsfiling an Answer or moving for summary judgment. As of the filing of this Notice, no Defendanthas filed an Answer in this action. Further, while the Defendants have moved for summary judgment, the Court denied the Defendants’ Motion for Summary Judgment without prejudiceessentially ruling that the same was prematurely filed. (D.E. 32). In light thereof, Plaintiff asserts that voluntary dismissal by notice alone should be appropriate under Rule 41(a)(1)(A)(i).Alternatively, Plaintiff requests voluntary dismissal without prejudice pursuant to Rule42(a)(2) of the Federal Rules of Civil Procedure. Rule 42(a)(2) permits voluntary dismissalwithout prejudice “by court order, on terms that the court considers proper.” Voluntary dismissal 1 In an effort to minimize the number of parties and to streamline litigation, and because its principal organizerDebbie Gunnoe will remain a Plaintiff, Navarre Patriots wishes to withdraw its claims. Case 9:10-cv-80062-KAM Document 45 Entered on FLSD Docket 06/21/2010 Page 1 of 5  2without prejudice pursuant to Rule 42(a)(2) “should be granted unless a defendant would sufferclear legal prejudice, other than the prospect of a subsequent lawsuit as a result.” See U.S. v.Maloney, 2007 WL 1424228, *2 (S.Dist.Fla. 2007)(Marra, J.)(quoting Ponteberg v. BostonScientific Corp., 252 F.3d 1253, 1255 (11th Cir. 2001)).Granting the Plaintiff’s request for voluntary dismissal will not cause any prejudice to theDefendants. Therefore, voluntary dismissal without prejudice is justified in this action.Dated: June 21, 2010Respectfully Submitted,By: /s/ FRANK HERRERAFrank HerreraFlorida Bar No. 494801Email:fherrera@qpwblaw.com Gustavo SardiñaFlorida Bar No. 31162Email:gsardina@qpwblaw.com QUINTAIROS, PRIETO, WOOD & BOYER, P.A.9300 S. Dadeland Blvd.Fourth FloorMiami, Florida 33156Telephone: 305-670-1101Facsimile: 305-670-1161AndTimothy Lucero, Esq.LUCERO LAW GROUP10693 Wiles Road, Suite 159Coral Springs, Florida 33076Tel.: (954) 592-5277Email:attorneytimothylucero@yahoo.com  Attorneys for Plaintiffs Case 9:10-cv-80062-KAM Document 45 Entered on FLSD Docket 06/21/2010 Page 2 of 5  3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy hereof is being filed via the Court’s CM/ECF onlinefiling system, and that the same is being served on the Defendants, namely:The Tea Party andFrederic B. O’Neal, Esq.P.O. Box 842Windermere, Florida 34786Nicholas Egoroff 5402 Andover DriveOrlando, Florida 32812Douglas GuetzloeP.O. Box 531101Orlando, Florida 32853via U.S. Mail this 21 st day of June, 2010.By: _s/GUSTAVO SARDIÑA___Gustavo Sardiña Case 9:10-cv-80062-KAM Document 45 Entered on FLSD Docket 06/21/2010 Page 3 of 5  4 IN THE UNITED STATES DISTRICT COURT   IN AND FOR THE SOUTHERN DISTRICT OF FLORIDA  SOUTH FLORIDA TEA PARTY, INC.,A Florida non-profit corporation, et al.,Plaintiffs,v. CASE NO.: 10-80062-CV-MARRA/JOHNSONTEA PARTY, et al.Defendants._________________________________/  ORDER THIS CAUSE came before the Court on Plaintiff NAVARRE PATRIOTS’ Notice of Voluntary Dismissal, filed on June 21, 2010 [D.E. __]. Upon review of this motion, and for goodcause shown, the Court states as follows:Plaintiff notes that he may, pursuant to Rule 41(a)(1)(A)(i), voluntarily dismiss his claimsprior to the Defendants having Answered or moved for summary judgment, that the Defendantshave not Answered, and that the Defendants’ Motion for Summary Judgment was denied asprematurely filed. Thus, it is the Plaintiff’s position that he may voluntarily dismiss his claimsby notice alone.Alternatively, Plaintiff asks that the Court allow him to voluntarily dismiss his claimswithout prejudice pursuant to Rule 41(a)(2) as the Defendants will suffer no prejudice.Regardless of whether dismissal would be under Rule 41(a)(1)(A)(i) or Rule 41(a)(2), theresult would be the same. The Court agrees that the Defendants will not be prejudiced byvoluntary dismissal, and grants the relief sought in Plaintiff’s Notice. Case 9:10-cv-80062-KAM Document 45 Entered on FLSD Docket 06/21/2010 Page 4 of 5
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