-6-
specific provision as to this matter.6 See Rule 1. Under rule
41(a)(2), a plaintiff is not entitled as a matter of right to a
dismissal after the defendant has served a motion for summary
judgment but is allowed such a dismissal in the sound discretion
of the court. Pontenberg v. Boston Scientific Corp., 252 F.3d
1253, 1255-1256 (11th Cir. 2001); LeCompte v. Mr. Chip, Inc.,
5(...continued)
notice of dismissal operates as an
adjudication upon the merits when filed by a
plaintiff who has once dismissed in any court
of the United States or of any state an
action based on or including the same claim.
(2) By Order of Court. Except as
provided in paragraph (1) of this subdivision
of this rule, an 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.
* * * * * * *
(d) Costs of Previously-Dismissed Action. If a
plaintiff who has once dismissed an action in any court
commences an action based upon or including the same
claim against the same defendant, the court may make
such order for the payment of costs of the action
previously dismissed as it may deem proper * * *.
6 Our Rule on dismissals, Rule 123(b), relates to dismissals
“For failure of a petitioner properly to prosecute or to comply
with these Rules or any order of the Court or for other cause
which the Court deems sufficient”. Pursuant to that Rule, “the
Court may dismiss a case at any time and enter a decision against
the petitioner.” Id. Rule 123(b) does not apply to the setting
at hand where petitioners voluntarily move the Court to dismiss
their petition filed under sec. 6320(c) to review a notice of
Federal tax lien.
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Last modified: May 25, 2011