United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
a habeas corpus case. Mr. Buttercase is trying to perfect an
interlocutory appeal (filing no. 50) regarding his
motion to dismiss the petition without prejudice (filing no.
44) which I denied (filing no. 47).
The motion to dismiss the petition without prejudice
came after the Respondent had answered.
I ruled on his motion, I required the Respondent to file a
brief in response. The Respondent did so, arguing:
Eighth Circuit explained in Hamm v. Rhone-Poulenc Rorer
Pharmaceuticals, Inc., 187 F.3d 941, 950 (8th Cir.
Rule 41(a) identifies those instances in which the plaintiff
must obtain the approval of the court before the action can
be dismissed voluntarily. Once an answer or a motion for
summary judgment has been filed, an action may be dismissed
at the plaintiff's request only upon order of the court
and upon such terms and conditions as the court deems proper.
See Fed. R. Civ. P. 41(a)(1)(i). A decision
whether to allow a party to voluntarily dismiss a case rests
upon the sound discretion of the court. See,
e.g., Bodecker v. Local Union No. P-46, 640
F.2d 182, 186 n. 5 (8th Cir. 1981). In exercising that
discretion, a court should consider factors such as whether
the party has presented a proper explanation for its desire
to dismiss, see, e.g., Paulucci v. City
of Duluth, 826 F.2d 780, 783 (8th Cir.1987); whether a
dismissal would result in a waste of judicial time and
effort, see, e.g., Tikkanen v. Citibank
(South Dakota) N.A., 801 F.Supp. 270, 273-74
(D.Minn.1992); and whether a dismissal will prejudice the
defendants, see, e.g., Metropolitan
Federal Bank of Iowa, F.S.B. v. W.R. Grace & Co.,
999 F.2d 1257, 1262 (8th Cir.1993). Likewise, a party is not
permitted to dismiss merely to escape an adverse decision nor
to seek a more favorable forum. See, e.g.,
Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856, 857
n. 1 (8th Cir.1975); International Shoe Co. v. Cool,
154 F.2d 778, 780 (8th Cir.), cert. denied, 329 U.S.
726, 67 S.Ct. 76, 91 L.Ed. 628 (1946).
(Filing no. 46 at CM/ECF pp. 3-4.)
Respondent then argued:
To dismiss this case without prejudice, thus allowing the
petitioner to refile his habeas petition in the future, would
be a waste of judicial resources and effort, and would
prejudice the State's interest in finality of judgments
on collateral attack, because the petitioner's current
habeas petition should be dismissed with prejudice. As
Respondent explained in his brief, Buttercase's habeas
claims are either not cognizable, procedurally defaulted, or
without merit. This is not a case involving unexhausted
claims as Buttercase wants this Court to believe.
(Id. at 4.)
agreed with Respondent. Indeed, the record in this case will
show that it has been progressed, the Respondent has
answered, the Respondent has briefed the matter, and the
Respondent has filed the state court records. The record will
also show that I have extended Petitioner's deadline for
filing a responsive brief after denying as baseless motions
submitted by him that delayed this case. (See, for example,
filing no. 28 and filing no. 42 extending
deadlines.) Although I deal with it in another Memorandum and
Order, Buttercase has recently filed a frivolous motion
seeking my recusal because he has sued the lawyer for the
Respondent and me for our conduct in this case. It is clear
that Buttercase is dragging his feet because he fears the
outcome of this matter.
address the attempt at an interlocutory appeal, the request
to proceed in forma pauperis and the issue of a certificate
of appealability. First, the ruling appealed from is not a
final order. I have not certified this matter for an
interlocutory appeal pursuant to 18 U.S.C. § 1292(b). I
therefore do not believe this matter is appealable.
the motion to proceed on appeal in forma pauperis will be
denied. I certify that the appeal is not taken in good faith
but rather to cause undue delay. 28 U.S.C. § 1915(a)(3).
I deny a certificate of appealability, assuming one may be
required. A petitioner cannot appeal an adverse ruling on a
petition for writ of habeas corpus under § 2254 unless
he is granted a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App.
P. 22(b)(1). However, I recognize that the statute refers to
a “final order.”
(or the underlying order appealed from) is considered a final
order then I deny a certificate of appealability. The
standards for certificates (1) where the district court
reaches the merits or (2) where the district court rules on
procedural grounds are set forth in Slack v.
McDaniel, 529 U.S. 473, 484-485 (2000). I have applied
the appropriate standard and ...