Negron v. City of Miami Beach, FL

United States Court of Appeals,
Eleventh Circuit.
No. 95-5172.
Wanda NEGRÓN, Antonio Dominguez, Victor Alfred Varela, William
Calderin, Juan Carlos Pérez, Maria B. Calcerrada, Maria Beatriz
Guitierrez, Violeta Pilgrin, Victor Diaz, Plaintiffs-Appellants,
Rafael Negrón, Russell Royce, Gloria Royce, Kathryne Schwickeri,
Maria Martinez, Antonio Martinez, Judy Freyre, Jose M. Argote,
Mirta Pestana, Elsa B. Dominguez, Plaintiffs,
v.
CITY OF MIAMI BEACH, FLORIDA, et al., Defendants-Appellees,
Dori J. De Falco, Intervenor-Plaintiff.
June 10, 1997.
Appeals from the United States District Court for the Southern
District of Florida. (No. 94-1055-CIV-KEHOE), James W. Kehoe,
Judge.
Before CARNES, Circuit Judge, and FAY and CAMPBELL*, Senior Circuit
Judges.
CARNES, Circuit Judge:
Plaintiffs brought this action alleging that the electoral
structure for selecting the members of the governing commission of
the City of Miami Beach, Florida, violated § 2 of the Voting Rights
Act by diluting Hispanic voting power. After a bench trial, the
district court concluded that there was no § 2 violation and
entered judgment for the defendants. We affirm.
I. FACTS AND PROCEDURAL HISTORY
The City of Miami Beach is located on a seven mile stretch of
beach between the Atlantic Ocean and Biscayne Bay. According to
the 1990 census, 92,639 people live within its 87 blocks. The
*
Honorable Levin H. Campbell, Senior U.S. Circuit Judge for
the First Circuit, sitting by designation.
racial characteristics of the population are as follows:
White 44,7211 48.27%
Black 3,358 3.62%
Hispanic 43,342 46.79%
Other 1,218 1.31%
______________________________________
Total 92,639
The voting age population ("VAP"), defined as those aged 18 and
over, is as follows:
White VAP 40,106 50.41%
Black VAP 2,548 3.20%
Hispanic VAP 35,947 45.18%
Other VAP 957 1.20%
______________________________________
Total VAP 79,558
However, according to sample data released by the Census Bureau,
only 50.16% of the Hispanic residents of Miami Beach are citizens,
while 88.18% of the non-Hispanic residents are citizens.
Miami Beach is governed by the City Commission, consisting of
a mayor and six commissioners. All seven members (the mayor and
the six commissioners) are elected in at-large elections. The six
commissioner positions are numbered so that candidates must run for
a particular seat. The mayor presides over City Commission
meetings but otherwise has no greater authority than the other six
1
Occasionally in the trial and in the exhibits, the white
population is stated as 44,421. At other times, it is stated as
44,721. The percentage which is always stated to be 48.27%, is
correct only if the figure 44,721 is used. That figure also
agrees with the census data.
commissioners. The City Commission hires a city manager to run the
city on a day-to-day basis.
A number of Hispanic citizens who reside in Miami Beach
brought this action against the City, its mayor, the city
commissioners, and the city clerk.2 The complaint alleged that the
defendants violated § 2 of the Voting Rights Act of 1965, 42 U.S.C.
§ 1973, and further violated 42 U.S.C. §§ 1981 and 1983.
Plaintiffs contended that the at-large method of electing the mayor
and city commissioners impermissibly diluted Hispanic voting
strength in Miami Beach.
The district court held a five-day bench trial beginning May
1, 1995. The court took judicial notice of a number of census
tables, which included information from the 1990 census of the
entire population and information from questions posed to a smaller
sample population. The plaintiffs presented several witnesses,
including four experts. The defendants called no expert witnesses.
On the last day of trial, plaintiff Victor Diaz, proceeding pro se,
moved in open court that the district court dismiss him as a party.
The district court denied that motion.
The district court concluded that the plaintiffs had failed to
carry their burden of proof on the § 2 vote dilution claim because
they failed to establish any of the three preconditions and to
satisfy the totality of the circumstances prong, as required by
Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25(1986). The court further concluded that the plaintiffs had failed
2
Plaintiffs also named the Dade County, Florida supervisor
of elections as a defendant but later dismissed the claims
against him.
to show intentional discrimination, which was fatal to their § 1981
and § 1983 claims. Accordingly, the court entered judgment in
favor of the defendants.
On appeal, the plaintiffs have abandoned their § 1981 and §
1983 claims, raising only the question of whether the district
court correctly held that the plaintiffs failed to prove a § 2
violation. Additionally, Diaz appeals from the district court's
refusal to dismiss him from the action.
II. STANDARD OF REVIEW
We review a district court's findings of § 2 vote dilution
for clear error. See Gingles, 478 U.S. at 79, 106 S.Ct. at 2781.
Deference is afforded the district court's findings "due to its
"special vantage point' and ability to conduct an "intensely local
appraisal of the design and impact of' a voting system." Lucas v.
Townsend, 967 F.2d 549, 551 (11th Cir.1992) (quoting White v.
Regester, 412 U.S. 755, 769, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314(1973)). However, we will correct a district court's errors of law
and its findings of fact based upon misconceptions of law. See
United States v. Jones, 57 F.3d 1020, 1022 (11th Cir.1995) (citing
Meek v. Metropolitan Dade County, Fla., 985 F.2d 1471, 1481 (11th
Cir.1993)).
We review for abuse of discretion a district court's decision
whether to grant a voluntary dismissal. See Fisher v. Puerto Rico
Marine Management, Inc., 940 F.2d 1502, 1502-03 (11th Cir.1991)
(citation omitted).
III. ANALYSIS
A. THE SECTION 2 VOTE DILUTION CLAIM
1. The Gingles Framework
Section 2(a) of the Voting Rights Act states:
No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any
State or political subdivision in a manner which results in a
denial or abridgement of the right of any citizen of the
United States to vote on account of race or color....
42 U.S.C. § 1973(a). Section 2(b) further explains:
A violation of [§ 2(a) ] is established if, based on the
totality of circumstances, it is shown that the political
processes leading to nomination or election in the State or
political subdivision are not equally open to participation by
members of a class of citizens protected by [§ 2(a) ] in that
its members have less opportunity than other members of the
electorate to participate in the political process and to
elect representatives of their choice.
Id. at § 1973(b). As Justice O'Connor explained in Thornburg v.
Gingles, "the essence of a vote dilution claim is that the State
has created single-member or multimember districts that
unacceptably impair the minority group's ability to elect the
candidates its members prefer." 478 U.S. at 88, 106 S.Ct. at 2786(O'Connor, J., concurring in the judgment).
The Gingles Court set forth three prerequisites for
establishing a § 2 vote dilution claim. Plaintiffs must establish
that:
(1) the minority group is "sufficiently large and geographically
compact to constitute a majority in a single-member district";
(2) the minority group is "politically cohesive"; and
(3) "the white majority group votes sufficiently as a bloc to
enable it ... to defeat the minority's preferred candidate."
Id. at 50-51, 106 S.Ct. at 2766-67 (citations omitted). These
three Gingles factors are "necessary preconditions" to a § 2 vote
dilution claim. Id. at 50, 106 S.Ct. at 2766.
Proving the three preconditions is not the end of the story,
however. As the Supreme Court explained in a later case:
if Gingles so clearly identified the three [preconditions] as
generally necessary to prove a § 2 claim, it just as clearly
declined to hold them sufficient in combination, either in the
sense that a court's examination of relevant circumstances was
complete once the three factors were found to exist, or in the
sense that the three in combination necessarily and in all
circumstances demonstrated dilution.
Johnson v. De Grandy, 512 U.S. 997, 1011, 114 S.Ct. 2647, 2657, 129
L.Ed.2d 775 (1994). As § 2 mandates, a court must look to the
totality of the circumstances to determine whether there is
impermissible vote dilution. Gingles, 478 U.S. at 79, 106 S.Ct. at
2781; De Grandy, 512 U.S. at 1011, 114 S.Ct. at 2657. Borrowing
from the Senate report accompanying the 1982 Amendments to the
Voting Rights Act, Gingles identified a list of factors that may
under the totality of the circumstances support a claim of vote
dilution. See Gingles, 478 U.S. at 37, 106 S.Ct. at 2759 (quoting
S.Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N.
177, 206-07).
The district court correctly utilized the Gingles framework in
analyzing plaintiffs' § 2 claim. After examining the evidence, the
court concluded that the plaintiffs had failed to establish any of
the Gingles preconditions: numerosity and compactness, minority
cohesion, or bloc voting. The court further concluded that, under
the totality of the circumstances, plaintiffs had failed to prove
their § 2 vote dilution claim. Because we hold that the district
court correctly determined that plaintiffs had failed to establish
the first Gingles precondition, numerosity and compactness, it is
unnecessary for us to review its other determinations.
2. The First Gingles Precondition
In their attempt to establish the first Gingles precondition,
the plaintiffs offered Jerry Wilson, who testified as to the
demographics of Miami Beach. Based on 1990 census data, Wilson
explained that the Hispanic population of Miami Beach was
concentrated in the southern and northern ends of the city. He
also produced a plan, called Plan 7-C, that divides Miami Beach
into seven districts of approximately equal population:
Plan 7-C
Total White Black Hisp. Hisp. Total White Black Hisp. Hisp.
District Pop Pop Pop Pop % VAP VAP VAP VAP %
1 13,594 4,125 705 8,669 63.77% 11,817 3,850 527 7,362 62.30%
2 13,509 4,340 600 8,408 62.24% 11,420 3,420 452 7,021 61.48%
3 13,213 7,366 351 5,374 40.67% 12,195 7,043 307 4,747 38.93%
4 13,224 8,149 169 4,723 35.72% 11,547 7,184 153 4,060 35.16%
5 13,027 10,010 139 2,700 20.73% 11,288 8,770 123 2,263 20.05%
6 13,432 6,455 464 6,289 46.82% 11,665 5,931 375 5,184 44.44%
7 12,640 4,276 930 7,179 56.80% 9,626 3,508 611 5,310 55.16%
Total 92,639 44,721 3,358 43,342 79,558 40,016 2,548 35,947
—————
As the table indicates, in three of the districts, Districts 1, 2,
and 7, Hispanics constitute a majority of the population and of the
voting age population. Based on this proposed plan, Wilson
concluded that the Hispanic population of Miami Beach is large
enough and compact enough to constitute a majority in a
single-member district.
As the district court found and Wilson admitted, however, he
did not take into account the significant disparity between
Hispanic and non-Hispanic citizenship rates. Citizenship data is
available for the City of Miami Beach from the Census Bureau
through a separate special tabulation. Synthesizing data from
Table 182 and Table 167, contained in the 1990 Census of
Population, Social and Economic Characteristics, Florida, produces
the following citizenship rates, which demonstrate a significant
disparity between Hispanic and non-Hispanic citizenship rates:
Hispanic citizenship rate 50.16%
Non-Hispanic citizen ship rate 88.18%
Applying these rates to Districts 1, 2, and 7 of Plan 7-C yields
the following results:
Non Non Non Hispan % of
Hispan Hispani Hispan Hispan Hispan ic Hispanic
District ic c ic ic ic Citizen Citizen
VAP Cit.Rate Citizen VAP Cit.Rat VAP VAP
e
VAP
1 4455 3928 7362 3692 48.45%
88.18% 50.16
%
2 4399 3879 7021 3521 47.58%
88.18% 50.16
%
7 4316 3805 5310 2663 41.17%
88.18% 50.16
%
—————
As the final column of this table indicates, when citizenship is
taken into account, there is no Hispanic majority in any of the
districts. Accordingly, the district court concluded that the
plaintiffs failed to meet the first Gingles precondition because,
among other reasons, they failed to consider citizenship rates in
drawing Plan 7-C.
Plaintiffs contend that citizenship should not be taken into
account. To support that position, plaintiffs rely on Solomon v.
Liberty County, Florida, 899 F.2d 1012 (11th Cir.1990) (en banc).
In Solomon, this Court unanimously held that the plaintiffs had
established the three Gingles preconditions. The court split
evenly, however, on the question of the legal significance of that
accomplishment. Judge Kravitch wrote a special concurrence, in
which four judges joined. Then-Chief Judge Tjoflat also wrote a
special concurrence in which four judges joined.3 For present
purposes, the differences that split the Court in Solomon are not
relevant.
What is relevant is that every member of the Solomon Court
agreed that the district court had erred in focusing on registered
voter statistics instead of voting age population statistics. See
Solomon, 899 F.2d at 1018 (Kravitch, J., specially concurring);
Solomon v. Liberty County, Florida, 865 F.2d 1566, 1574 (11th
Cir.1988) (Tjoflat, J.), vacated and reh'g en banc granted, 873
F.2d 248 (11th Cir.1989). Because blacks made up 51% of the voting
age population of the proposed district, the first Gingles
precondition was satisfied even though blacks made up only 46% of
the registered voters of that district. See Solomon, 899 F.2d at
1018 (Kravitch, J., specially concurring) and Solomon, 865 F.2d at
3
Insofar as it is relevant to our current discussion, Chief
Judge Tjoflat's concurrence referred to and adhered to the views
expressed in the prior panel opinion, Solomon v. Liberty County,
Florida, 865 F.2d 1566, 1574 (11th Cir.1988), vacated and reh'g
en banc granted, 873 F.2d 248 (11th Cir.1989), which he had
authored. Accordingly, the citations in the following discussion
to the views of Chief Judge Tjoflat, and the four judges who
joined him in Solomon, are to that prior panel opinion.
1574 (Tjoflat, J.)
The plaintiffs in this case contend that Solomon requires that
voting age population statistics be used in § 2 analysis instead of
voting age citizenship population statistics. Of course, Solomon
did not address that issue, because there was no indication in that
case that there was any disparity between black and white
citizenship rates. Nor is there likely to be any disparity in
citizenship rates, except in a case, such as this one, where the
minority population includes a substantial number of immigrants.
Because the question was not presented in Solomon, the
holding in that case could not and does not preclude a holding in
this case that refinement with citizenship data is appropriate,
where that data is available and indicates a significant difference
in the citizenship rates of the majority and minority populations.
The reasoning in Solomon does not preclude such a holding, either.
Both opinions in that case reasoned that voting age population
statistics were preferable to registered voter statistics because
minority voter registration might well have been suppressed by the
absence of any prospect of electing representatives of the
minority's choice. 899 F.2d at 1018 (Kravitch, J., specially
concurring) ("An at-large election system that frustrates the
ability of minorities to elect their chosen representatives will
naturally reduce the incentive for blacks to register to vote.");
865 F.2d at 1574 (Tjoflat, J.) ("Minority voter registration
figures are inherently unreliable measures in vote dilution cases
because the very lack of minority political power responsible for
bringing of the section 2 action may also act to depress voter
registration."). The same cannot be said of citizenship. It is
far more difficult for an immigrant to become a citizen than it is
for a citizen to register to vote. Given all the other benefits
citizenship entails, it is unlikely that a significant number of
the non-citizen Hispanic residents of the City of Miami Beach would
have become citizens if only the City had been districted in a
manner making it possible for Hispanics to elect a representative
of their choice to the City Commission.
We find support for consideration of citizenship data in
Supreme Court opinions. The Court has thus far declined to answer
directly the question of "which characteristic of minority
populations (e.g., age, citizenship) ought to be the touchstone for
proving a dilution claim." De Grandy, 512 U.S. at 1008, 114 S.Ct.
at 2656. However, the Court has said that the foundational inquiry
for the first Gingles precondition is whether "the minority has the
potential to elect a representative of its own choice in some
single-member district." Growe v. Emison, 507 U.S. 25, 39, 113
S.Ct. 1075, 1084, 122 L.Ed.2d 388 (1993) (citation omitted and
emphasis added). As the Gingles court explained:
The reason that a minority group making [a vote dilution]
challenge must show, as a threshold matter, that it is
sufficiently large and geographically compact to constitute a
majority in a single-member district is this: Unless minority
voters possess the potential to elect representatives in the
absence of the challenged structure or practice, they cannot
claim to have been injured by that structure or practice....
Thus, if the minority group is spread evenly throughout a
multimember district, or if, although geographically compact,
the minority group is so small in relation to the surrounding
white population that it could not constitute a majority in a
single-member district, these minority voters cannot maintain
that they would have been able to elect representatives of
their choice in the absence of the multimember electoral
structure.
478 U.S. at 50 n. 17, 106 S.Ct. at 2766 n. 17 (emphasis added).
See Romero v. City of Pomona, 883 F.2d 1418, 1425 (9th Cir.1989)
(explaining that the Gingles opinion "repeatedly makes reference to
effective voting majorities, rather than raw population totals, as
the touchstone for determining geographical compactness" (footnote
omitted)).
In order to elect a representative or have a meaningful
potential to do so, a minority group must be composed of a
sufficient number of voters or of those who can readily become
voters through the simple step of registering to vote. In order to
vote or to register to vote, one must be a citizen. We agree with
the Ninth Circuit that because "a section 2 claim will fail unless
the plaintiff can establish that the minority group constitutes an
effective voting majority in a single-member district," Romero, 883
F.2d at 1426, the proper statistics for deciding whether a minority
group is sufficiently large and geographically compact is voting
age population as refined by citizenship. Id. at 1424-26. Of
course, the requirement that voting age population data be further
refined by citizenship data applies only where there is reliable
information indicating a significant difference in citizenship
rates between the majority and minority populations. As we have
previously indicated, such a disparity is unlikely except in areas
where the population includes a substantial number of immigrants.
We turn now to the question of whether such information exists in
this case.
3. The Citizenship Information for Miami Beach
Plaintiffs attempt to justify their expert's decision not to
use citizenship information by calling into question the accuracy
of the data itself. The Miami Beach citizenship information from
the Census Bureau was not obtained by the door-to-door census but
is instead based on questions posed to a smaller segment of the
population. The citizenship information (as well as some other
information) is extrapolated from this smaller sample population.
Because the citizenship information is based upon a sample
population, it cannot be as precise as the census data, which is
based upon the entire population. For example, according to the
sample data, there are 42,888 Hispanics in Miami Beach, as compared
to 43,342 as shown in the door-to-door census data. Plaintiffs
contend that because the sample data underestimates the Hispanic
population and simultaneously overestimates the white and black
population, mixing the sample data with the census data invites
error.
If mixing the two sets of data is an invitation for error, it
is an invitation plaintiffs themselves extended. In addressing the
totality of the circumstances, plaintiffs offered income, poverty
and education statistics showing that Hispanics in Miami Beach were
poorer and less educated than their white counterparts. All of
those statistics came from sample data. One of the key census
tables containing citizenship data, Table 182, was one the district
court took judicial notice of at the plaintiffs' request. We will
not allow plaintiffs to take inconsistent positions by touting the
sample data when it suits their purposes and decrying the validity
of that data when it does not.
Even if plaintiffs themselves had not introduced and relied on
the sample data, we would nevertheless uphold the district court's
consideration of the citizenship statistics, even though those
statistics are based on sample data. The use of sample data is a
long-standing statistical technique, whose limits are known and
measurable. We will not reject the citizenship statistics solely
because they are based on sample data without some indication that
the sample was tainted in some way. There were no arguments before
the district court that the sample was skewed in a statistically
significant way due to improper sampling method, small sample size,
or sheer random error.4 The plaintiffs contend that the sample's
underestimation of the Hispanic population should cause the sample
data to be rejected, but plaintiffs fail to show that that
underestimation is statistically significant. In fact, there is a
close correlation between the door-to-door census data and the
sample data. For example, with regard to figures for the Hispanic
population (43,342 figure from the census data compared to 42,888
figure from the sample data), the difference amounts to less than
one percent. We conclude that the citizenship information for
Miami Beach is reasonably accurate and demonstrates a significant
disparity between Hispanic citizenship rates and non-Hispanic
citizenship rates. In order to obtain an accurate assessment of
Hispanic voting strength, this reasonably accurate citizenship
information should be taken into account.
The plaintiffs offer two other arguments against using the
citizenship information. First, the sample data, including the
4
Plaintiffs stated at oral argument that the sample data for
Miami Beach was based upon questions posed to approximately 10%
of the population, which is a relatively large sample size.
citizenship information, is available only at the block group
level, not at the block level, which is the smallest population
group. Plaintiffs contended at oral argument that using the block
group data would force Wilson to make several assumptions when
drawing the map and result in a less exact map. However, Wilson
admitted in his testimony at trial that it was possible to create
a district map of Miami Beach using block groups. Accordingly, we
reject this argument.
Second, the plaintiffs contend that the district court erred
in not accepting Wilson's plan disregarding citizenship, because
the defendants presented no expert testimony explaining how or why
citizenship should be taken into account. Putting aside for the
moment the fact that the district court as factfinder was free to
reject Wilson's expert testimony, even if it was uncontradicted,
see Gregg v. U.S. Industries, Inc., 887 F.2d 1462, 1469-70 (11th
Cir.1989), plaintiffs misconstrue the issue. Whether citizenship
should be taken into account for the first Gingles precondition is
a question of law. See De Grandy, 512 U.S. at 1007-10, 114 S.Ct.
at 2655-56. Wilson's testimony, uncontradicted or not, and any
failure of the defendants to put on testimony, have no bearing on
the resolution of that legal question.
Plaintiffs argue in the alternative that, assuming citizenship
rates should be taken into account, Plan 7-C still allows for a
majority Hispanic district. However, that argument is based upon
application of citizenship rates to raw population figures, not to
voting age population. As we have explained, both voting age and
citizenship are to be considered in determining whether the
minority group has the potential to elect its preferred
representatives. When both citizenship and voting age are taken
into account, plaintiffs cannot make the requisite showing that
Hispanics will constitute a majority in a single-member district.
Plaintiffs point to one other piece of evidence in their
effort to show that the district court erred in deciding that the
first Gingles precondition had not been met. Wilson apparently
created another map of Miami Beach on which he drew a single
district with a 66% majority Hispanic VAP. Neither the map nor the
chart giving the racial breakdown of the single district were
introduced into evidence. However, Wilson testified about the
single district, and we will consider this evidence to the extent
he testified about it. In any event, Wilson stopped short after
this first district and never drew the other six districts. There
is no information as to what the six remaining districts might look
like, where they would be located, or what their racial and ethnic
makeup might be. Nor is there information about how many people
reside in the district or how the single district compares in
population size to the remaining six districts. Thus, this is not
really a plan, but only a part of one.
As this Court has interpreted the first Gingles precondition,
"plaintiffs in vote dilution cases must demonstrate that the
challenged system suppressed minority voting strength in comparison
to some alternative, feasible benchmark system." Nipper v. Smith,
39 F.3d 1494, 1531 (11th Cir.1994) (en banc majority opinion)
(citing Holder v. Hall, 512 U.S. 874, 114 S.Ct. 2581, 129 L.Ed.2d
687 (1994)), cert. denied, --- U.S. ----, 115 S.Ct. 1795, 131
L.Ed.2d 723 (1995); see also SCLC v. Sessions, 56 F.3d 1281, 1289
(11th Cir.1995) (en banc) ("[P]laintiffs must show that an
appropriate remedy can be fashioned" as part of first Gingles
precondition), cert. denied, --- U.S. ----, 116 S.Ct. 704, 133
L.Ed.2d 660 (1996). A district court cannot implement an
incomplete plan, containing only a single district, with the rest
of the map left blank. Because this plan does not provide an
"alternative, feasible benchmark system," plaintiffs' testimony
regarding this incomplete plan fails to meet the first Gingles
precondition.
To summarize, we conclude that the first Gingles precondition
requires the consideration of citizenship information to determine
whether a minority has the potential to elect its preferred
representative in a single-member district, when that information
is reasonably accurate and demonstrates a significant difference
between minority and majority citizenship rates. When citizenship
rates are applied to plaintiffs' Plan 7-C, the plan fails to create
any districts where Hispanics constitute a majority of potential
voters. We agree with the district court that plaintiffs have
failed to establish the first Gingles precondition. Because we
hold that plaintiffs' § 2 vote dilution claim fails with the first
Gingles precondition, we do not address the remainder of the
district court's findings of fact and conclusions of law concerning
the claim.
B. THE RULE 41 DISMISSAL
Plaintiff Diaz appeals from the district court's refusal to
grant his motion for voluntary dismissal pursuant to Federal Rule
of Civil Procedure 41. Diaz contends that his motion to dismiss
was a Rule 41(a)(1)(ii) stipulation. That rule provides the
following:
[A]n action may be dismissed by the plaintiff without order of
court ... by filing a stipulation of dismissal signed by all
parties who have appeared in the action.
Fed.R.Civ.P. 41(a)(1)(ii). Diaz's motion fails to meet the
requirement of the rule in two ways. First, the motion was not
made in writing but was made orally in open court. Second, even if
an oral motion could satisfy the rule, there is no indication in
the record that anyone besides Diaz agreed to the motion. The rule
is clearly stated: a voluntary dismissal by stipulation is
applicable only if all the parties sign off on it. Diaz was not
entitled to a voluntary dismissal by stipulation.
Rule 41(a)(2) provides the other avenue for a voluntary
dismissal. It states:
[A]n action shall not be dismissed at the plaintiff's instance
save upon order of the court and upon such terms and
conditions as the court deems proper.
Fed.R.Civ.P. 41(a)(2). If Diaz's motion to dismiss is considered
as a Rule 41(a)(2) motion, it requires leave of the court and is
subject to the court's discretion. We review the district court's
decision on a Rule 41(a)(2) dismissal only for abuse of discretion.
See Fisher v. Puerto Rico Marine Management, Inc., 940 F.2d 1502,
1503 (11th Cir.1991). We can find nothing in the record that
indicates the district court's refusal to grant his motion was an
abuse of discretion.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the
district court.