Peacock v. Bank of America Corporation

Full title: MICHAEL W. PEACOCK and DELICIA S. PEACOCK, Plaintiffs, v. BANK OF AMERICA…

Court: United States District Court, M.D. Georgia, Valdosta Division

Date published: Mar 15, 2011

Civil Action No. 7:10-CV-00011 (HL) (M.D. Ga. Mar. 15, 2011)

Opinion

Civil Action No. 7:10-CV-00011 (HL).

March 15, 2011

ORDER

HUGH LAWSON, District Judge

Before the Court is the Defendants Bank of America Corporation and Countrywide Home Loans, Inc.'s (hereinafter together "the Defendants") motion to dismiss their counterclaim against the Plaintiffs without prejudice (Doc. 43). The motion is granted.

I. BACKGROUND

II. ANALYSIS

4115¹ Klay v. United Healthgroup, Inc.376 F.3d 10921106Id.

1 Rule 41 also applies to any "counterclaim, crossclaim, or third-party claim." Fed.R.Civ.P. 41(c).

The Defendants are attempting to dismiss all of their claims against the Plaintiffs. Therefore, Rule 41 applies because the Defendants are not attempting to dismiss a particular claim within a multi-claim action. Rule 41 states that a "plaintiff may dismiss an action without a court order by filing" either "(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment" or "(ii) a stipulation of dismissal signed by all parties who have appeared." Fed.R.Civ.P. 41(a)(1)(A)(i)-(ii). If neither of these options is available, then a plaintiff may dismiss an action only by court order "on terms that the court considers proper." Fed.R.Civ.P. 41(a)(2). Hence, the Defendants' motion to dismiss their counterclaim against the Plaintiffs without prejudice has to be granted, if at all, by court order since no stipulation of the parties has been filed, and the Plaintiffs have already answered the Defendants' counterclaim (Doc. 11).

In determining whether it would be proper to dismiss a claim without prejudice, a district court "enjoys broad discretion in determining whether to allow a voluntary dismissal under Rule 41(a)(2)." Pontenberg v. Boston Scientific Corp., 252 F.3d 1253, 1255 (11th Cir. 2001). In fact, "in most cases a dismissal [without prejudice] 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., Inc., 781 F.2d 855, 856-57 (11th Cir. 1986) (emphasis in original). To determine if there would be legal prejudice, courts must ask whether "the defendant [would] lose any substantial right by the dismissal." Pontenberg, 252 F.3d at 1255 (quotingDurham v. Florida E. Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967)).

In their response to the Defendants' motion, the Plaintiffs assert no reason as to why they would suffer a loss of any substantial right as a result of the motion to dismiss being granted without prejudice (Doc. 45). Moreover, the Court cannot imagine a scenario in which the Plaintiffs would suffer legal prejudice, especially in light of Eleventh Circuit's jurisprudence in this area. See Pontenberg, 252 F.3d at 1256 (stating that 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 denial of a motion to dismiss"). Discovery in this case has not concluded and the Plaintiffs' claims against the Defendants will remain pending despite the dismissal of the counterclaim. Therefore, the Court does not foresee the loss of any substantial right by the Plaintiffs as a result of dismissing the Defendants' counterclaim without prejudice.

III. CONCLUSION

For the reasons discussed above, the Defendants' motion to dismiss their counterclaim against the Plaintiffs without prejudice (Doc. 43) is granted.

SO ORDERED, this the ___ day of March, 2011.