                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 12-1809
                       ___________________________

                            United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                               Kristin L. Dougherty

                       lllllllllllllllllllllMovant - Appellant


  Real Property located at Parcel No. 71-17A Estate Fish Bay, No. 8 Reef Bay
Quarter, St. John, U.S. Virgin Islands, PWD No. D9-7414-T004, along with all its
                   buildings, appurtenances, and improvements

                            lllllllllllllllllllll Defendant
                                    ____________

                    Appeal from United States District Court
               for the Western District of Missouri - Kansas City
                                ____________

                           Submitted: August 30, 2012
                           Filed: September 10, 2012
                                 [Unpublished]
                                 ____________

Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.

                                  ____________
PER CURIAM.

      In this civil forfeiture action, after claimant Kristin Dougherty filed a Federal
Rule of Civil Procedure 12 motion to dismiss, the district court1 granted the
government’s motion for voluntary dismissal without prejudice, and later denied
Dougherty’s motion for costs, his motion to amend the dismissal to be with prejudice,
and his motions for reconsideration. Dougherty appeals, and we affirm.

       First, because Dougherty had not yet filed an answer or summary judgment
motion at the time that the government sought its voluntary dismissal, the dismissal
operated as one under Federal Rule of Civil Procedure 41(a)(1)(A)(i) (dismissal by
notice of plaintiff). Thus, the dismissal did not require a court order, and the court
lacked discretion to dismiss the action with prejudice. See Fed. R. Civ. P.
41(a)(1)(B). Second, Dougherty was not a substantially prevailing party for purposes
of the fee-shifting provision in 28 U.S.C. § 2465(b)(1)(A), because, among other
reasons, a Rule 41(a)(1)(A)(i) voluntary dismissal without prejudice leaves the
government free to refile against the property at issue. Accordingly, we affirm the
district court’s orders denying costs, declining to amend the judgment to be with
prejudice, and denying reconsideration. See 8th Cir. R. 47B.
                        ______________________________




      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

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