United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
THERESA L. SPRINGMANN, CHIEF JUDGE UNITED STATES DISTRICT
matter is before the Court on the Plaintiff's, Tamika
Nicole Ogden, Motion to Dismiss Her Filed Complaint [ECF No.
34], pursuant to Federal Rule of Civil Procedure 41(a)(2).
Plaintiff filed her Complaint [ECF No. 1] on December 20,
2016, alleging that the Defendant, Receivables Performance
Management, LLC, violated the Fair Debt Collection Practices
Act (FDCPA), the Telephone Consumer Protection Act (TCPA),
and the Indiana Deceptive Consumer Sales Act. The Defendant
filed an Answer [ECF No. 20], and the parties engaged in
discovery and mediation. On January 24, 2018, the Defendant
filed a Motion for Summary Judgment [ECF No. 32].
February 21, 2018, the Plaintiff filed Plaintiff's Motion
to Dismiss Her Filed Complaint [ECF No. 34] pursuant to
Federal Rule of Civil Procedure 41(a)(2), seeking dismissal
with prejudice. The Plaintiff states that she determined that
dismissing this matter with prejudice would be appropriate
and attempted to draft a stipulation of agreed dismissal with
the Defendant. (Pl.'s Mot. to Dismiss at 1.) The
Defendant filed an Opposition to Motion to Dismiss [ECF No.
35], and the Plaintiff filed a Reply in Support [ECF No. 36].
The matter is now ripe for review.
Federal Rule of Civil Procedure 41(a)(2), a plaintiff may
request that the Court dismiss her claim, without the consent
of the other parties in the action, on terms that the court
considers proper. Fed.R.Civ.P. 41(a)(2). After service of an
answer or motion for summary judgment, the Court enjoys wide
discretion in considering Rule 41 motions. Under these
circumstances, dismissal is not automatic, and the Court, in
its discretion, may issue an order dismissing the case.
Id. As a result, the Court's chief concern in
deciding whether and on what terms to grant a Rule 41(a)(2)
dismissal should be fairness to the defendant, who in theory
has not consented to the dismissal. See Tyco Labs, Inc.
v. Koppers Co., Inc., 627 F.2d 54, 56 (7th Cir. 1980).
In such cases, the plaintiff bears the burden of persuasion.
Tolle v. Carroll Touch, Inc., 23 F.3d 174, 177 (7th
Cir. 1994) (citing FDIC v. Knostman, 966 F.2d 113,
1142 (7th Cir. 1992)). Dismissal under Rule 41(a)(2) is
without prejudice, unless otherwise ordered by a court, and
this suggests that the terms and conditions of dismissal
should be for a defendant's benefit. McCall-Bey v.
Franzen, 777 F.2d 1178, 1184 (7th Cir. 1985) (stating
that the terms and conditions “are the quid for the quo
of allowing the plaintiff to dismiss his suit without being
prevented by the doctrine of res judicata from bringing the
same suit again”).
would abuse its discretion if it were to permit voluntary
dismissal where the defendant would suffer plain legal
prejudice as a result. Wojtas v. Capital Guardian Tr.
Co., 477 F.3d 924, 927 (7th Cir. 2007). In deciding
whether to grant a Rule 41(a)(2) motion to dismiss, a court
may look at a variety of factors, including: (1) a
defendant's effort and resources already expended in
preparing for trial; (2) excessive delay and lack of
diligence on the part of the plaintiff in prosecuting the
action; (3) insufficient explanation for the need of a
dismissal; and (4) whether a summary judgment motion has been
filed by the defendant. Tyco Labs, Inc., 627 F.2d at
56. These factors, however, are guidelines and are not
Defendant argues that dismissal will result in legal
prejudice and that it is entitled to fees and costs pursuant
to 28 U.S.C. § 1927, due to the Plaintiff's bad
faith conduct during litigation. The Plaintiff argues that
there is no legal prejudice and the Defendant is not entitled
to fees or cost.
Rule 41(a)(2) Factors
Defendant states that dismissal pursuant to Rule 41(a)(2) is
inappropriate and will result in plain legal prejudice
because the dismissal is: (i) sought late in the litigation;
(ii) the purpose is to avoid an adverse determination on the
merits of the action and deny the Defendant an opportunity to
adjudicate the issue; and (iii) a voluntary dismissal will
deprive the Defendant of its right to seek prevailing party
fees and costs. (Def.'s Resp. at 4.) The Plaintiff
responds that the Defendant's arguments do not constitute
a showing of legal prejudice, as the costs of defending or
prosecuting a lawsuit are not “legal prejudice”
as Rule 41 contemplates. (Pl.'s Reply at 3.)
exercising its discretion the court follows the traditional
principle that dismissal should be allowed unless the
defendant will suffer some plain legal prejudice other than
the mere prospect of a second lawsuit.” Stern v.
Barnett, 452 F.2d 211, 213 (7th Cir. 1971) (quoting 2B
Barron and Holtzoff, Federal Practice and Procedure §
912, p. 167 (Wright ed. 1961)). Plain legal prejudice may
result from “the defendant's effort and expense of
preparation for trial, excessive delay and lack of diligence
on the part of the plaintiff in prosecuting the action,
insufficient explanation for the need to take a dismissal,
and the fact that a motion for summary judgment has been
filed by the defendant.” Tyco Labs., Inc., 627
F.2d at 56 (quoting Pace v. S. Express Co., 409 F.2d
331 (7th Cir. 1969)). Plain legal prejudice, however, is
“more clearly shown where the defendant has filed a
counterclaim prior to the time that plaintiff has moved to
dismiss, a circumstance which is specifically covered by the
language of the Rule.” Id. The Defendant has
no counterclaim or circumstance specifically covered by the
language of Rule 41. Rather, the Defendant argues that the
efforts it expended in discovery and its pending Motion for
Summary Judgment constitute legal prejudice. The question for
the Court then is whether any of the Defendant's alleged
harms align with the guidelines the Seventh Circuit outlined
first instance, discovery in this matter has not been so
extensive as to be tantamount to plain legal prejudice that
would preclude dismissal. Though the Defendant argues that
the Plaintiff's production was scant, both the parties
exchanged discovery. The Plaintiff appeared for a deposition
and deposed the Defendant and vice versa. These facts are
readily distinguishable from the cases the Defendant cited in
support of its argument that it will suffer legal prejudice-
Tolle v. Carroll Touch, Inc., 23 F.3d 174, 177 (7th
Cir. 1994), and Kapoulas v. Williams Ins. Agency,
Inc., 11 F.3d 1380, 1383 (7th Cir. 1993). The litigation
in Tolle had been pending for four years, discovery
had been completed for approximately twenty-two months, and
the district court had limited the contested issues in the
matter by granting a partial summary judgment motion.
Tolle, 23 F.3d at 177-78. In this case, the
Plaintiff's Motion to Dismiss was filed less than two
years after the commencement of litigation, discovery was
completed less than a year [ECF No. 28] before the Plaintiff
filed the motion, and no summary judgment ruling has limited
the scope of the issues. ...