United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Bank of New York
Mellon Trust Company's “Motion to Confirm
Arbitration Award” (Doc. 11) and Supplement (Doc. 13)
to the Court's Order (Doc. 12). While Plaintiff was
provided with the opportunity to file an objection to
Defendant's motion and supplement by May 4, 2017, no
objection was filed.
on April 20, 2017, the Court ordered as follows:
As for the substantive relief Defendant seeks - for the
undersigned to confirm the arbitrator's award and
“have it entered as a final judgment of the
Court.” There is insufficient information before the
Court to do so. The April 18, 2017
Arbitrator's Decision states merely that Defendant's
motion for summary judgment is granted with “a final
finding…entered in favor of” of Defendant, and
that the $1, 360 arbitrator's fee is assessed to
Defendant. (Doc. 11-1 at 2). There is nothing more before the
Court (e.g., no awards/amounts specified). In its singular
sentence motion, Defendant cites PTA-FLA, Inc. v. ZTE
USA, Inc., 844 F.3d 1299, 1305-1306 (11th
Cir. 2016) (in which a defendant sought to confirm a zero
dollar award). As such, Defendant is ORDERED to file a
Supplement to its motion, on or before April 27, 2017,
clarifying the relief it seeks and authority for that relief.
Specifically, if they are seeking to confirm an entry of
summary judgment (as opposed to a specific award amount), the
court requests briefing on the authority to enter such a
It is ORDERED that any objection by Plaintiff to the
Defendant's motion (Doc. 11) and forthcoming Supplement
shall be filed on or before May 4, 2017.
(Doc. 12 (footnoted omitted)).
response, Defendant filed a Supplement (Doc. 13), with which
it has provided copies of the summary judgment motion,
response and reply, which was ruled upon via arbitration. In
so doing, Defendant notes that “the Arbitrator issued
his award (Arbitrator's Decision)”. (Doc. 13 at
2). Defendant does not indicate there is any arbitrator's
award per se (i.e., monetary sum). Defendant
suggests that as an alternative to confirming the arbitration
award, if needed, “the Court should simply dismiss this
case, without prejudice.” (Doc. 13 at 3-4). Plaintiff
has filed no objection to either of Defendant's requests
(to confirm or dismiss).
awards are not self-enforcing, [but]…must be given
force and effect by being converted to judicial orders'
on an appropriate motion to confirm....” Mulhall v.
UNITE HERE Local 355, 618 F.3d 1279, 1293
(11th Cir. 2010). At the outset, Defendant has
still not shown that there is “an award” for this
Court to confirm, and the undersigned can discern none.
Rather, there is simply a decision from the Arbitrator - a
summary judgment ruling - that Defendant seeks to have
“confirmed” as the “final judgment”
of this Court. (Doc. 13 at 4). The Arbitrator's ruling
with regard to Defendant's summary judgment consists, in
total, of the following: “After reviewing all of the
pleadings, I find that the Motion for Summary
Judgment…is due to be granted and a final finding is
hereby entered in favor of the Respondent [Defendant] on this
date. The arbitrator's fee…is assessed to the
Respondent [Defendant] in the amount of $1, 360.00.”
(Doc. 13-1 at 106). The Defendant has failed to cite any
legal authority to enter a confirmation to a summary
judgment, and this court declines to do so.
Court finds that the better course is to address the
alternative requested by Defendant - to dismiss
Plaintiff's case without prejudice. Rule 41 governs
dismissals and any dismissal based on Defendant's
alternative request must be accomplished pursuant to Rule
41(a)(2) of the Federal Rules of Civil Procedure,
“on terms the Court considers proper, ” via Court
order. 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….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.'…..
the Eleventh Circuit specified 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
... 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 ...