Case 9:10-cv-80062-KAM Document 33

Entered on FLSD Docket 05/17/2010 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE SOUTHERN DISTRICT OF FLORIDA SOUTH FLORIDA TEA PARTY, INC., A Florida non-profit corporation, et al., Plaintiffs, v. TEA PARTY, et al. Defendants. _________________________________/ PLAINTIFF BLANCA PERALES-SMITH’S NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE Plaintiff, BLANCA PERALES-SMITH, pursuant to Rule 41(a)(1)(A)(i) or alternatively pursuant to 42(a)(2) of the Federal Rules of Civil Procedure, hereby gives notice of her voluntary dismissal of all claims asserted by her, without prejudice, in the above-entitled matter. Specifically, Rule 41(a)(1)(A)(i) sets out that a Plaintiff may voluntarily dismiss its claims without prejudice and without a Court Order by notice at any time prior to the Defendants filing an Answer or moving for summary judgment. As of the filing of this Notice, no Defendant has filed an Answer in this action. Further, while the Defendants have moved for summary judgment, the Court denied the Defendants’ Motion for Summary Judgment without prejudice essentially ruling that the same was prematurely filed. (D.E. 32). In light thereof, Plaintiff asserts that voluntary dismissal by notice alone should be appropriate under Rule 41(a)(1)(A)(i). Alternatively, Plaintiff requests voluntary dismissal without prejudice pursuant to Rule 42(a)(2) of the Federal Rules of Civil Procedure. Rule 42(a)(2) permits voluntary dismissal without prejudice “by court order, on terms that the court considers proper.” Voluntary dismissal without prejudice pursuant to Rule 42(a)(2) “should be granted unless a defendant would suffer CASE NO.: 10-80062-CV-MARRA/JOHNSON

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Case 9:10-cv-80062-KAM Document 33

Entered on FLSD Docket 05/17/2010 Page 2 of 5

clear legal prejudice, other than the prospect of a subsequent lawsuit as a result.” See U.S. v. Maloney, 2007 WL 1424228, *2 (S.Dist.Fla. 2007)(Marra, J.)(quoting Ponteberg v. Boston Scientific Corp., 252 F.3d 1253, 1255 (11th Cir. 2001)). Granting the Plaintiff’s request for voluntary dismissal will not cause any prejudice to the Defendants. Therefore, voluntary dismissal without prejudice is justified in this action. Dated: May 17, 2010 Respectfully Submitted, By: /s/ FRANK HERRERA Frank Herrera Florida Bar No. 494801 Email: fherrera@qpwblaw.com Gustavo Sardiña Florida Bar No. 31162 Email: gsardina@qpwblaw.com QUINTAIROS, PRIETO, WOOD & BOYER, P.A. 9300 S. Dadeland Blvd. Fourth Floor Miami, Florida 33156 Telephone: 305-670-1101 Facsimile: 305-670-1161 Timothy Lucero, Esq. LUCERO LAW GROUP 10693 Wiles Road, Suite 159 Coral Springs, Florida 33076 Tel.: (954) 592-5277 Email: attorneytimothylucero@yahoo.com Attorneys for Plaintiffs

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Case 9:10-cv-80062-KAM Document 33

Entered on FLSD Docket 05/17/2010 Page 3 of 5

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy hereof is being filed via the Court’s CM/ECF online filing system, and that the same is being served on the Defendants, namely: The Tea Party and Frederic B. O’Neal, Esq. P.O. Box 842 Windermere, Florida 34786 Nicholas Egoroff 5402 Andover Drive Orlando, Florida 32812 Douglas Guetzloe P.O. Box 531101 Orlando, Florida 32853 via U.S. Mail this 17th day of May, 2010. By: _s/GUSTAVO SARDIÑA___ Gustavo Sardiña

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Case 9:10-cv-80062-KAM Document 33

Entered on FLSD Docket 05/17/2010 Page 4 of 5

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE SOUTHERN DISTRICT OF FLORIDA SOUTH FLORIDA TEA PARTY, INC., A Florida non-profit corporation, et al., Plaintiffs, v. TEA PARTY, et al. Defendants. _________________________________/ ORDER THIS CAUSE came before the Court on Plaintiff Blanca Perales-Smith’s Notice of Voluntary Dismissal, filed on May 17, 2010 [D.E. __]. Upon review of this motion, and for good cause shown, the Court states as follows: Plaintiff notes that she may, pursuant to Rule 41(a)(1)(A)(i), voluntarily dismiss her claims prior to the Defendants having Answered or moved for summary judgment, that the Defendants have not Answered, and that the Defendants’ Motion for Summary Judgment was denied as prematurely filed. Thus, it is the Plaintiff’s position that she may voluntarily dismiss her claims by notice alone. Alternatively, Plaintiff asks that the Court allow her to voluntarily dismiss her claims without prejudice pursuant to Rule 41(a)(2) as the Defendants will suffer no prejudice. Regardless of whether dismissal would be under Rule 41(a)(1)(A)(i) or Rule 41(a)(2), the result would be the same. The Court agrees that the Defendants will not be prejudiced by voluntary dismissal, and grants the relief sought in Plaintiff’s Notice. CASE NO.: 10-80062-CV-MARRA/JOHNSON

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Case 9:10-cv-80062-KAM Document 33

Entered on FLSD Docket 05/17/2010 Page 5 of 5

ORDERED that Plaintiff Blanca Perales-Smith’s claims in this action are dismissed without prejudice. DONE AND ORDERED in Chambers, this __ day of _____, 2010. ____________________________ United States District Judge

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