Richard T. and Margie Wagner - Page 7




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          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.                 




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