Opinion
CIVIL ACTION NO. 03-588, SECTION: "R" (2)
August 19, 2003
ORDER AND REASONS
Before the Court is plaintiff's motion for voluntary dismissal without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(2). For the following reasons, plaintiff's motion to dismiss without prejudice is GRANTED.
I. Background
Plaintiff brought this lawsuit under the Jones Act, 46 U.S.C. app. 688, and general maritime law on February 25, 2003. On June 12, 2003, defendant Barge Bulk Transport, Inc. filed an answer. Plaintiff asserts that Barge Bulk is a foreign corporation not licensed to do business in Louisiana. Defendant Dawn Services, LLC has not filed an answer.
On June 10, 2003, the U.S. Coast Guard issued the General Index or Abstract of Title for the vessel on which plaintiff was allegedly injured. Plaintiff learned that the vessel was owned by C.B. Louisiana, Ltd., a Louisiana corporation. Plaintiff states that C.B. Louisiana may be liable to him, and that plaintiff may have a claim against C.B. Louisiana in state court pursuant to the "savings to suitors" clause of the U.S. Constitution. Therefore, plaintiff moves to voluntarily dismiss his federal court action without prejudice, pursuant to Rule 41(a) (2). Defendant Barge Bulk opposes this motion on the grounds that it will suffer prejudice if the case is dismissed.
Plaintiff correctly notes that because defendant Dawn Services has not filed an answer or a motion for summary judgment, plaintiff has the right to voluntarily dismiss the case as LO char defendant without leave of court. Plaintiff also properly complied with Rule 41(a)(1), which provides that plaintiff must file a notice of dismissal at any time before the adverse party serves an answer or motion for summary judgment. (Rec. Doc. No. 6.)
II. Discussion
Federal Rule of Civil Procedure 41(a)(2) provides, in pertinent part, that "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." FED. R. CIV. P, 41(a)(2). Courts have broad discretion to grant Rule 41(a)(2) motions, subject to review on appeal for abuse of discretion. See Phillips v. Illinois Central Gulf R.R., 874 F.2d 984, 986 (5th Cir. 1989). Absent a showing that the defendant will suffer clear legal prejudice, courts generally grant motions to dismiss without prejudice. See id. Such harm must be "greater than the mere prospect of a second lawsuit." Hartford Accident Indem. Co. v. Costa Lines Cargo Serv., Inc., 903 F.2d 352, 360 (5th Cir. 1990) (citing 9 CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE PROCEDURE § 2364 (1971 Supp. 1990)). In assessing prejudice, courts must examine the stage of the litigation at which the motion is made. See id.
Defendant argues that it has expended "considerable effort and cost in preparing for litigation in this Court." (Def.'s Br. at 3.) The Court finds that defendant has expended some resources in propounding and responding to discovery, in opposing this motion, and in participating in a preliminary telephone conference. Plaintiff filed this motion on July 15, 2003, approximately four and one half months after it initiated the lawsuit. The Court does not find, however, that this case has proceeded to an extent that warrants the denial of plaintiff's motion. As stated above, neither party has filed any substantive motions in this case, and it is not scheduled for trial until March 29, 2004. Further, the discovery can be used in any state court proceeding. Instances in which the Fifth Circuit has affirmed the denial of such motions involved more extreme circumstances. See, e.g., Davis v. Huskipower Outdoor Equipment Corp., 936 F.2d 193, 199 (5th Cir. 1991) (affirming denial of Rule 41(a)(2) motion when parties had filed numerous pleadings and memoranda, had attended conferences, and after magistrate had issued comprehensive recommendation adverse to plaintiffs); Hartford Accident, 903 F.2d at 360 (affirming denial of Rule 41(a)(2) motion when plaintiff moved for dismissal ten months after case had been removed to federal court, and after several hearings had been held, one defendant had been dismissed on summary judgment, and parties had undertaken substantial discovery).
In light of this case law, the Court grants plaintiff's motion to dismiss without prejudice.
III. Conclusion
For the foregoing reasons, plaintiff's motion to dismiss without prejudice under Rule 41(a)(2) is granted.
New Orleans, Louisiana, this day of 19th day of August, 2003.