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. CASE NO.: 10-80062-CV-MARRA/JOHNSON

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

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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
And
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. CASE NO.: 10-80062-CV-MARRA/JOHNSON

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.

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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