United States District Court, N.D. Mississippi, Oxford Division
ORDER DISMISSING CASE
M. BROWN UNITED STATES DISTRICT JUDGE.
February 15, 2018, Sandra Garner filed a motion seeking an
extension of fourteen days to respond to the Report and
Recommendation issued by United States Magistrate Judge Jane
M. Virden on January 30, 2018. Doc. #10. The Report and
Recommendation recommends denying Garner's pro se motion
for leave to proceed in forma pauperis and closing the case
because “Garner has failed to show she is unable to
prepay the filing fee for this action [and] even if she were
able to demonstrate she is financially unable to pay the
filing fee, her amended complaint fails to state a claim over
which this court has jurisdiction.” Doc. #8 at 7.
Regarding jurisdiction, the Report and Recommendation
concludes that Garner failed to sufficiently allege her Title
VII claim and failed to exhaust administrative remedies on
her age discrimination claim. Id. at 5, 7. On
February 26, 2018, this Court, finding Garner failed to
demonstrate good cause for the extension due to her failure
to offer any reason for it,  denied her motion for extension
without prejudice to its renewal no later than March 5, 2018.
March 5, 2018, Garner filed a “Request for Extension of
Time.” Doc. #12. In the motion, Garner renews her
request for an extension to respond to the Report and
Plaintiff in her amended complaint stated the claim of Age
Discrimination based on the facts surrounding the first EEOC
charge noted in the complaint found gained that knowledge in
October, did not know it was a claim, sent EEOC the
information and the EEOC never got back with me. So plaintiff
went there and filed the claim in person, as of last week the
Superintendent has terminated my employment and Plaintiff
will be amending to relate back to the original claims after
satisfying administrative remedy, and the pending right to
sue on the claims under title VII civil rights act of 1964.
Or an alternative Plaintiff withdraw the complaint until the
EEOC has investigated the claims and given is findings.
Id. at 1-2. Based on this, it appears Garner (1)
requests an extension to respond to the Report and
Recommendation until after she has amended her complaint
following the exhaustion of administrative remedies on her
age discrimination claim, and (2) alternatively, moves to
dismiss this case without prejudice so that she may exhaust
such administrative remedies with the EEOC.
nowhere in the motion does Garner request an extension to
challenge the Report and Recommendation's conclusion that
she “has failed to show she is unable to prepay the
filing fee for this action.” Accordingly, even if
Garner is subsequently able to demonstrate this Court's
jurisdiction, such would not justify her proceeding in forma
pauperis in this case. For this reason, Garner has again not
shown good cause for an extension to respond to the Report
and Recommendation, and her extension request will be denied.
Garner's alternative request to dismiss this case without
prejudice, Federal Rule of Civil Procedure 41(a)(2) provides,
in pertinent part, that “an action may be dismissed at
the plaintiff's request only by court order, on terms the
court considers proper, ” and that such a dismissal is,
unless the order states otherwise, without prejudice. The
Fifth Circuit has instructed “that, as a general rule,
motions for voluntary dismissal should be freely granted
unless the non-moving party will suffer some plain legal
prejudice other than the mere prospect of a second
lawsuit.” Elbaor v. Tripath Imaging, Inc., 279
F.3d 314, 317 (5th Cir. 2002); see Test Masters Educ.
Servs., Inc. v. Robin Singh Educ. Servs., Inc., 799 F.3d
437, 448 (5th Cir. 2015). Whether to grant dismissal under
Rule 41(a)(2) falls within the discretion of the district
court. Pondexter v. Wal-Mart Stores E., LP, No.
3:16-CV-65, 2017 WL 1393093, at *1 (N.D. Miss. Apr. 17, 2017)
(citing U.S. ex rel. Doe v. Dow Chem. Co., 343 F.3d
325, 330 (5th Cir. 2003)).
determine the existence of plain legal prejudice, the Fifth
Circuit has cited with approval a four-factor test from the
Eighth Circuit under which a court considers: “(1) the
defendant's effort and the expense involved in preparing
for trial, (2) excessive delay and lack of diligence on the
part of the plaintiff in prosecuting the action, (3)
insufficient explanation of the need to take a dismissal, and
(4) the fact that a motion for summary judgment has been
filed by the defendant.” Elbaor, 279 F.3d at
318 n.3 (quoting Witzman v. Gross, 148 F.3d 988, 992
(8th Cir. 1998)). In addition to these factors, the Fifth
Circuit has considered whether dismissal would cause the
non-movant to be stripped of an otherwise available defense,
Phillips v. Ill. Cent. R.R., 874 F.2d 984, 987 (5th
Cir. 1989); and whether the dismissal is sought “after
an adverse trial court ruling, ” Manshack v. Sw.
Elec. Power Co., 915 F.2d 172, 174 (5th Cir. 1990).
the docket reflects that none of the defendants named in
Garner's amended complaint (or original complaint) have
been served, it follows that the named defendants have
expended no effort and expense to prepare for trial and have
not moved for summary judgment. Similarly, dismissal would
not strip the not-yet-served named defendants of an otherwise
available defense. Further, given the early stage of this
litigation, there is no suggestion of excessive delay or lack
of diligence on Garner's part. Finally, Garner does not
seek dismissal in the wake of an adverse trial court
ruling; rather, Garner has explained that she
seeks dismissal to exhaust her administrative remedies before
the EEOC on her age discrimination claim. Because the
relevant factors to determine the existence of plain legal
prejudice weigh in Garner's favor, her case may be
voluntarily dismissed without prejudice.
Garner's renewed motion  is DENIED in Part
and GRANTED in Part. The motion is DENIED to the
extent it seeks an extension of the deadline to respond to
the Report and Recommendation, and is GRANTED to the extent
it seeks to dismiss this case without prejudice. This case is
DISMISSED without prejudice, and the January
30, 2018, Report and Recommendation  is REJECTED
 Any objections to the Report and
Recommendation were due within fourteen days of its issuance.