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United States District Court, E.D. New York

November 24, 2004.


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 provides:

[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 this case in its entirety.



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