The opinion of the court was delivered by: ARTHUR SPATT, District Judge
On September 23, 2002, Charles F. Tekula, Jr. ("Tekula" or the
"Plaintiff"), who is proceeding pro se, commenced this action
alleging various civil rights violations. On March 4, 2003,
Tekula moved for the appointment of counsel, which was denied by
the Court on June 17, 2003. On May 10, 2004, Tekula wrote a
letter to Magistrate Judge Arlene R. Lindsay requesting to
withdraw this case without prejudice in order to pursue the claim
in the New York State Division of Human Rights. On May 18, 2004,
a conference was held before Judge Lindsay in which Tekula moved
to withdraw the action without prejudice. Subsequent to the
conference, Judge Lindsay issued a Report and Recommendation
recommending that the plaintiff's request to dismiss the action,
without prejudice, be granted. The Report and Recommendations
noted that the action has been pending for two years, that the
plaintiff has not complied with outstanding discovery requests,
and has failed to appear for his court ordered deposition. The
Report also noted that the Plaintiff blames financial difficulty
for his apparent failure to prosecute the case.
On May 26, 2004, the defendants, Suffolk County Community
College, Frank Signor, John Vassil, William Walter, and Fritzi
Rohl ("Defendants") submitted objections to the Report and
Recommendation. The Defendants object to the action being
dismissed without prejudice and move the Court for dismissal with
prejudice. Specifically, the Defendants claim that a dismissal
without prejudice would be prejudicial to the Defendants because
of the Plaintiff's failure to comply with previous discovery
requests and the length of time that the case has been pending.
A court is required to make a de novo determination as to those
portions of the report and recommendation to which objections
were made. 28 U.S.C. § 636(b)(1)(c); Grassia v. Scully,
892 F.2d 16, 19 (2d Cir. 1989). The phrase "de novo determination" in
Section 636(b)(1) as opposed to "de novo hearing" was
selected by Congress "to permit whatever reliance a district
judge, in the exercise of sound judicial discretion, chose to
place on a magistrate's proposed findings and recommendations."
United States v. Raddatz, 447 U.S. 667, 676, 100 S. Ct. 2406,
65 L. Ed. 2d 424 (1980). Section 636 does not require a court "to
rehear the contested testimony in order to carry out the
statutory command to make the required `determination.'" Id. at
674. Rather, in making such a determination, a court in its
discretion should review the record and could hear oral argument.
See Pan Am. World Airways, Inc. v. Int'l Bhd.of Teamsters,
894 F.2d 36, 40 n. 3 (2d Cir. 1990). Furthermore, a court may in
its sound discretion afford a degree of deference to the
magistrate's report and recommendation. See Raddatz,
447 U.S. at 676. In light of these principles, the Court will make a de
novo determination with regard to the specific objections raised
by the Defendants.
Generally, a plaintiff may voluntarily dismiss a claim without
leave of court before the defendant serves an answer or a motion
for summary judgment. Fed.R. Civ. P. 41(a)(1). Where, as here, a
defendant has answered the complaint, a plaintiff may no longer
dismiss an action as a matter of right. See D'Alto v. Dahon
California, Inc., 100 F.3d 281, 283 (2d Cir. 1996). Under such
circumstances, the provisions of Rule 41(a)(2) apply, which
[A]n 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. . . .
Unless otherwise specified in the order, a dismissal
under this paragraph is without prejudice.
Fed.R. Civ. P. 41(a)(2).
In determining whether voluntary dismissal is proper, a court
considers: (1) the plaintiffs' diligence in bringing the motion;
(2) any "undue vexatiousness" on the part of the plaintiff; (3)
the extent to which the suit has progressed, including the
defendant's effort and expense in preparation for trial; (4) the
duplicative expense of re-litigation; and (5) the adequacy of
plaintiffs' explanation for the need to dismiss. See Catanzano
v. Wing, 277 F.3d 99, 109-10 (2d Cir. 2001); Zagano v. Fordham
Univ., 900 F.2d 12, 14 (2d Cir. 1990).
As a condition of dismissal, a court may convert a dismissal
sought to be entered without prejudice to one with prejudice.
Gravatt v. Columbia University, 845 F.2d 54 (2d Cir. 1988).
However, in the event that the court deems it proper to convert a
voluntary dismissal to one with prejudice, the plaintiff must be
afforded an opportunity to withdraw the motion and proceed with
the litigation. Id.
In this case, the Court agrees with the reasoning and
conclusion of Judge Lindsay's Report and Recommendations.
Although the action is over two years old and the Plaintiff has
failed to comply with discovery requests, the suit has not
progressed to the point where the Defendants have expended
efforts and expense in preparation for trial. Also, the record
does not indicate a pattern of "undue vexatiousness" on the part
of the Plaintiff. Therefore, the Defendant's request to dismiss
the action with prejudice is denied.
Based on the foregoing, it is hereby
ORDERED, that the Defendants' motion to dismiss the action
with prejudice is DENIED.
ORDERED, that Magistrate Judge Lindsay's Report and
Recommendation is adopted in its entirety; and it is further
ORDERED, that the Plaintiff's motion for voluntary dismissal
without prejudice is GRANTED; and it is further
ORDERED, that the Clerk of the Court is directed to close