-7- 528 F.2d 601 (5th Cir. 1976). In general, a court “should” grant a dismissal under rule 41(a)(2) “unless the defendant will suffer clear legal prejudice, other than the mere prospect of a subsequent lawsuit, as a result.” McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856-857 (11th Cir. 1986). “The crucial question to be determined is, Would the defendant lose any substantial right by the dismissal.” Durham v. Fla. E. Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967). In making this determination, a court must “weigh the relevant equities and do justice between the parties in each case, imposing such costs and attaching such conditions to the dismissal as are deemed appropriate.” McCants v. Ford Motor Co., Inc., supra at 857. The statutory period in which petitioners could refile their lawsuit in this Court appears to have expired. Section 6330(d)(1) requires that a petition to this Court be filed within 30 days of the determination that is the subject of section 6320. See also sec. 6320(c). The rule is deeply embedded in the jurisprudence of Federal law that the granting of a motion to dismiss without prejudice is treated as if the underlying lawsuit had never been filed. Monterey Dev. Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605, 608 (8th Cir. 1993); Brown v. Hartshorne Pub. Sch. Dist., 926 F.2d 959, 961 (10th Cir. 1991); Robinson v. Willow Glen Acad., 895 F.2d 1168, 1169 (7th Cir. 1990); Long v. Board of Pardons and Paroles, 725 F.2d 306 (5th Cir. 1984); Cabrera v. Municipality of Bayamon, 622 F.2d 4, 6 (1st Cir.Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011