IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

SAMMY D. YORK, HENRY H. HOLUBEC, JR., and GREGORY R. HAYES, individually and for all others similarly situated,

Plaintiffs, v. TEXAS A&M UNIVERSITY 12th MAN FOUNDATION a/k/a THE 12TH MAN FOUNDATION, Defendant.

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CASE NO. 2:15-CV-352-JRG

ORDER

Before the Court is the Plaintiffs’ Amended Joinder in Motion to Dismiss and Alternative

Request for Dismissal Without Prejudice Pursuant to Rule 41 (Dkt. No. 10). Plaintiffs have

requested that the Court dismiss this action without prejudice under Federal Rule of Civil

Procedure 41(a)(2). “[A]s a general rule, motions for voluntary dismissal should be freely

granted unless the non-moving party will suffer some plain legal prejudice other than the mere

prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir.

2002). “When a court is faced with a Rule 41(a)(2) motion, it should ‘first ask whether an

unconditional dismissal will cause the non-movant to suffer plain legal prejudice.’” In re FEMA

Trailer Formaldahyde Prods. Liab. Litig., 628 F.3d 157, 163 (5th Cir. 2010) (citing Elbaor, 279

F.3d at 317). Defendant has not alleged, and the Court does not find, that Defendant would

suffer any plain legal prejudice from an unconditional dismissal. In re Fema, 628 F.3d at 163.

On the contrary, Plaintiffs have already filed a subsequent action in the Southern District of

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Florida seeking essentially the same relief as sought here (Dkt. No. 14). This confirms that

Defendant is not facing “plain legal prejudice,” but rather is facing “the mere prospect of a

second lawsuit.”

Accordingly, under Federal Rule of Civil Procedure 41(a)(2), this action is hereby

DISMISSED without prejudice to refilling. Each party shall bear its own costs.

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