United States District Court, S.D. Alabama, Southern Division
K. DuBOSE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff Roosevelt
Landrum's motion to dismiss (Doc. 36), Defendant Georgia
Pacific Consumer Products LP's response with objections
and Rule 41(a)(2) Proposed Order (Docs. 37, 37-1), and
Landrum's Reply (Doc. 39).
outset, Rule 41 governs dismissals. Plaintiff seeks to
voluntarily dismiss his remaining claims against the
Defendant. Defendant filed an Answer. (Doc. 2). Defendant
also did not join in Plaintiff's motion such that it is
not a stipulation of dismissal. As such, any dismissal based
on Plaintiff's motion must be accomplished pursuant to
Rule 41(a)(2) of the Federal Rules of Civil
Procedure, on terms the Court considers proper, via
Except as provided in Rule 41(a)(1), an action may be
dismissed at the plaintiff's request only by court order,
on terms that the court considers proper. If a defendant has
pleaded a counterclaim before being served with the
plaintiff's motion to dismiss, the action may be
dismissed over the defendant's objection only if the
counterclaim can remain pending for independent adjudication.
Unless the order states otherwise, a dismissal under this
paragraph (2) is without prejudice.
Fed.R.Civ.P. Rule 41(a)(2).
assessing Rule 41(a)(2) motions, with regard to the
Court's discretion, and as enunciated in Fountain v.
Forniss, 2013 WL 360261, *3 (N.D. Ala. Jan. 25, 2013):
The decision to grant or deny a Rule 41(a)(2) motion to
dismiss an action without prejudice is entrusted to the sound
discretion of the district court; thus, a plaintiff holds no
right to such dismissal. What is more, in exercising its
discretion, the court must ‘keep in mind the interests
of the defendant, for Rule 41(a)(2) exists chiefly for
protection of defendants.' ‘In this instance, the
respondents were required to answer the petitioner's
claims and were required to locate, collect, and submit the
relevant record. They have demonstrated the absence of any
right to further review. To permit a dismissal without
prejudice is not fair to the respondents or justified under
the circumstances. Accordingly, this matter is due to be
dismissed with prejudice.' (quoting In re Bayshore
Ford Trucks Sales, Inc., 471 F.3d 1233, 1259 (11th
Cir.2006) (in turn quoting Fisher v. P.R. Marine Mgmt.,
Inc., 940 F.2d 1502, 1503 (11th Cir.1991)))).
Eleventh Circuit specified further in Pontenberg v.
Boston Scientific Corp., 252 F.3d 1253, 1255-1256, 1259
(11th Cir. 2001) (footnotes omitted) that:
The district court enjoys broad discretion in determining
whether to allow a voluntary dismissal under Rule 41(a)(2).
McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857
(11th Cir.1986). “[I]n most cases, a voluntary
dismissal should be granted unless the defendant will suffer
clear legal prejudice, other then the mere prospect of a
subsequent lawsuit, as a result.” Id. at
856-57. “The crucial question to be determined is,
Would the defendant lose any substantial right by the
dismissal.” Durham v. Florida East Coast Ry.
Co., 385 F.2d 366, 368 (5th Cir.1967). In exercising its
“broad equitable discretion under Rule 41(a)(2),
” the district court must “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.” McCants,
781 F.2d at 857. Accordingly, we review a district
court's decision to allow a voluntary dismissal without
prejudice under Rule 41(a)(2) only for an abuse of
Pontenberg sought to dismiss her action…after the
discovery period had expired and after her expert reports had
been excluded from the record as a result of her
attorney's failure to timely comply with the expert
disclosure requirements of Rule 26. Boston Scientific
objected to a voluntary dismissal without prejudice. Boston
Scientific claimed that a dismissal without prejudice was
inappropriate at this juncture in the litigation because it
had invested considerable resources, financial and otherwise,
in defending the action, including by preparing the then
pending summary judgment motion. Additionally, Boston
Scientific argued that dismissal without prejudice was
improper because Pontenberg had failed to diligently
prosecute the action.
…the district court did not abuse its broad discretion
in allowing Pontenberg to dismiss voluntarily her
action…without prejudice under Rule 41(a)(2). Neither
the fact that the litigation has proceeded to the summary
judgment stage nor the fact that the plaintiff's attorney
has been negligent in prosecuting the case, alone or
together, conclusively or per se establishes plain legal
prejudice requiring the ...