Opinion
Case No: 6:14-cv-614-Orl-41TBS
05-02-2016
VELVA PETERSON, Plaintiff, v. COMENITY CAPITAL BANK, Defendant.
ORDER
THIS CAUSE is before the Court on Plaintiff's Motion to Voluntarily Dismiss (Doc. 53), wherein Plaintiff seeks a voluntary dismissal without prejudice by Court order. Defendant filed a Response in Opposition (Doc. 54). Specifically, Defendant argues either that: (1) the case should be dismissed with prejudice or (2) a dismissal without prejudice should be conditioned on Plaintiff's payment of litigation costs and attorneys' fees.
Federal Rule of Civil Procedure 41(a)(2) allows voluntary dismissal upon motion and "court order, on terms that the court considers proper." "The plaintiff's right to a voluntary dismissal without prejudice is not absolute," but "in most cases a dismissal should be granted unless the defendant will suffer some legal harm." LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976). In considering whether a defendant would suffer some legal prejudice, "the Court should consider such factors as the defendant's effort and expense of preparation for trial, excessive delay and lack of diligence . . . in prosecuting the action, insufficient explanation for . . . a dismissal, and whether a motion for summary judgment has been filed by the defendant." Pezold Air Charters v. Phx. Corp., 192 F.R.D. 721, 728 (M.D. Fla. 2000) (quotation omitted). "[I]n most cases a dismissal should be granted unless the defendant will suffer clear legal prejudice, other than the mere prospect of a subsequent lawsuit, as a result." McCants v. Ford Motor Co., 781 F.2d 855, 856-57 (11th Cir. 1986) (emphasis omitted).
Decisions of the Fifth Circuit entered before October 1, 1981, are binding on the courts of the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981). --------
Defendant has not argued that it will suffer clear legal prejudice if this case is dismissed without prejudice aside from the prospect of a subsequent lawsuit. Accordingly, a dismissal without prejudice is appropriate in this case.
The Court may also condition a dismissal without prejudice on the payment of reasonable fees and costs, id. at 860, which Defendant urges the Court to do in this case. This remedy is appropriate where it is necessary to protect the nonmoving party's interests. Fisher v. Puerto Rico Marine Mgmt., Inc., 940 F.2d 1502, 1503 (11th Cir. 1991) (per curiam) ("[W]hen exercising its discretion in considering a dismissal without prejudice, the court should keep in mind the interests of the defendant, for Rule 41(a)(2) exists chiefly for protection of defendants."). However, Defendant has not shown that an award of costs and fees would be appropriate in this case. Specifically, Defendant has not offered any argument as to the appropriateness of an award in this case, aside from citation to general case law stating that such an award is available and sometimes proper to protect the interests of the defendant; Defendant has not cited to any cases that are procedurally or factually similar to this case. Furthermore, other than generally noting Plaintiff's lack of diligence in this litigation, Defendant has not pointed this Court to any fact specific to this case that would make an award of costs and fees necessary to protect Defendant's interests.
To date, there has been limited motions practice, and no discovery has taken place. Additionally, Defendant waited until after almost all deadlines had lapsed to bring Plaintiff's lack of prosecution to the Court's attention. Thus, Defendant is at least partially to blame for the time that has lapsed while this case has been pending without progress. See Arias v. Cameron, 776 F.3d 1262, 1269 (11th Cir. 2015) (holding that, although the court should consider the position of the nonmoving party, "the court should also weigh the relevant equities and do justice between the parties in each case, imposing such costs and attaching such conditions to the dismissal as are deemed appropriate"). Furthermore, Plaintiff has provided a sufficient explanation for her request. Under these circumstances, the Court finds that an award of fees and costs is not necessary to protect Defendant's interests and would not do justice as between these parties.
In accordance with the foregoing, it is hereby ORDERED and ADJUDGED as follows:
1. Plaintiff's Motion to Voluntarily Dismiss (Doc. 53) is GRANTED.
2. This case is DISMISSED without prejudice.
3. The Clerk is directed to terminate all pending motions and close this case.
DONE and ORDERED in Orlando, Florida on May 2, 2016.
/s/_________
CARLOS E. MENDOZA
UNITED STATES DISTRICT JUDGE Copies furnished to: Counsel of Record