United States v. Robert H. Kasik , 253 F. App'x 835 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
NOVEMBER 6, 2007
No. 06-15865
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 06-01368-CV-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT H. KASIK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(November 6, 2007)
Before EDMONDSON, Chief Judge, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Robert H. Kasik, pro se, appeals the district court’s order granting the
United States’s motion to dismiss voluntarily without prejudice its previously filed
petition against Kasik to enforce a tax summons, pursuant to 26 U.S.C. § §
7402(b), 7406(a). No reversible error has been shown; we affirm.
The petition, filed by the United States on 24 April 2006, sought a court
order directing Kasik to comply with an Internal Revenue Service (“IRS”)
summons to testify and to produce books, records and other documents needed by
the IRS to collect the federal tax liability of Kasik for the taxable years 1990,
1991, 1992 and 1994. On 6 June 2006, after Kasik was served personally with a
copy of the petition, he filed an answer and defenses to the petition. The district
court scheduled a hearing to take place on 12 July 2006; the United States was
directed to respond to Kasik’s answer and defenses by 30 June 2006.
Before the date scheduled for the United States’s response, the IRS received
levy proceeds from Kasik’s bank that satisfied the outstanding tax liability. With
the tax liability now paid, enforcement of the summons was no longer necessary;
the United States moved to dismiss the action without prejudice under Rule
41(a)(2) of the Federal Rules of Civil Procedure. Kasik objected; he argued,
among other things, that dismissal should be with prejudice. The district court
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adopted the magistrate judge’s report and recommendation that the motion to
dismiss be granted without prejudice and so ordered the action dismissed.1
Rule 41of the Federal Rules of Civil Procedure governs the dismissal of
actions. A plaintiff may dismiss an action without an order of the court at any
time before the adverse party has served an answer or moved for summary
judgment. Fed.R.Civ.P. 41(a)(1). If, as was the case here, the adverse party has
served an answer, dismissal is available to a plaintiff only upon order of the court
and upon such terms and conditions as the court deems appropriate. Fed.R.Civ.P.
41(a)(2). Absent a contrary indication, dismissal under Rule 41(a)(1) or Rule
41(a)(2) is without prejudice.
We review the district court’s grant of a motion for voluntary dismissal
without prejudice for abuse of discretion. Potenberg v. Boston Scientific Corp.,
252 F.3d 1253, 1255-56 (11th Cir. 2001). The district court enjoys broad
discretion in determining whether to allow voluntary dismissal under Rule 41(a).
Id. And “in most cases, a [voluntary] dismissal should be granted unless the
defendant will suffer clear legal prejudice, other than the mere prospect of a
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The district court denied as moot Kasik’s motion for findings of fact and conclusions of law, and
denied his requests for Rule 11 sanctions and that the United States be held in contempt.
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subsequent lawsuit, as a result.” McCants v. Ford Motor Co., Inc., 781 F.2d 855,
856-57 (11th Cir. 1986) (emphasis in original).
Kasik’s brief makes arguments that take issue with the jurisdiction of the
courts and the enforceability of the summons. These arguments are without merit
or unimportant to the issue of whether the district court abused its discretion in
ordering a Rule 41(a)(2) dismissal without prejudice or both. Missing from
Kasik’s brief are facts relevant to the “crucial question to be determined:” whether
Kasik would “lose any substantial right by the dismissal.” Potenberg, 252 F.3d at
1255. Kasik makes no showing to establish that the district court abused its broad
discretion when the court granted the United States’s motion to dismiss voluntarily
without prejudice its petition to enforce the summons.
AFFIRMED.
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