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Michigan Surgery Inv., LLC v. Arman, 10-1612

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By FindLaw Staff on December 14, 2010 3:18 PM

Notice and opportunity to withdraw motion before accepting a voluntary dismissal with prejudice

Michigan Surgery Inv., LLC v. Arman, 10-1612, concerned a challenge to the district court's dismissal of plaintiffs' suit with prejudice after the plaintiffs had moved for voluntary dismissal without prejudice under Rule 41(a)(2) of the Federal Rules of Civil Procedure, in a dispute between doctors and investors for control of an outpatient surgery center.  In reversing the court remanded the case in concluding that, the district court did not give the plaintiffs notice of its intention to dismiss with prejudice, along with an opportunity to withdraw the request for voluntary dismissal.

As the court wrote: "One Tract's requirement of 'notice of the court's intention to dismiss with prejudice' thus means that the district court must inform the plaintiff that the court intends to grant Rule 41(a)(2) motion with prejudice.  It is not enough that the plaintiff is aware that dismissal with prejudice is possible under Rule 41(a)2), or even that the defendant has requested that any grant of a Rule 41(a)(2) motion be with prejudice."

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