Free Motion to Dismiss - Rule 41(a) - District Court of Federal Claims - federal

Case 1:06-cv-00111-CCM

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Filed 09/28/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ JOHN DOE and JANE ROE for themselves ) and on behalf of all others similarly situated, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

Civil Action No. 06-111C Judge Christine O.C. Miller

PLAINTIFFS' MOTION FOR VOLUNTARY DISMISSAL OF ACTION PURSUANT TO RULE 41(a)(2)

Plaintiffs JOHN DOE and JANE ROE ("Plaintiffs"), in lieu of filing an Opposition to Defendant's Motion for Summary Judgment, hereby move the Court for an order for voluntary dismissal of the above-entitled action, without prejudice, in accordance with Rule 41(a)(2) of the Rules of the United States Court of Federal Claims ("RCFC"). This motion is based upon the following: (1) The Court's September 15, 2006 Order causes Plaintiffs to reexamine the

nature and suitability of the complaint; (2) (3) The case has had no discovery and no class has been certified; No payment or agreement of any kind has been made with Defendants, or

otherwise, to cause this dismissal; (4) (5) No counterclaim has been filed; Dismissal without prejudice is appropriate under RCFC, Rule 41(a)(2),

and dismissal will not prejudice Defendants. See, e.g., Whyde v. United States, 51 Fed.

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Cl. 635 (2002) (finding that voluntary dismissal without prejudice was appropriate where there was no neglect or dilatory tactics and defendant's pending motion for summary judgment asserted only facial challenges). WHEREFORE, Plaintiffs respectfully move that this motion be granted. Respectfully submitted, September 28, 2006 s/Ira M. Lechner Ira M. Lechner Attorney for Plaintiffs 19811 4th Place Escondido, CA 92029 (858) 864-2258

OF COUNSEL: Susan Tsui Grundsmann General Counsel NATIONAL FEDERATION OF FEDERAL EMPLOYEES 1016 16th Street, N.W. Washington, D.C. 20036 (202) 862-4457 FAX (202) 862-4432

Jeffrey R. Krinsk Mark A. Golovach FINKELSTEIN & KRINSK 501 West Broadway, Suite 1250 San Diego, CA 92101-3593 (619) 238-1333 Fax (619) 238-5425

CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 23rd day of August, 2006, a copy of the foregoing "PLAINTIFFS' MOTION FOR VOLUNTARY DISMISSAL 2

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OF ACTION PURSUANT TO RULE 41(a)(2)" was filed electronically in the United States Court of Federal Claims. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's electronic filing system.

s/Sharon A. Jones Sharon A. Jones

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