In addition, federal courts in Florida have interpreted Rule 41(d) as applying when cases are refiled either in federal or state courts. See Russell-Brown v. Jerry, II, 270 F.R.D. 654, 660 (N.D. Fla. 2010) ("the express language of Rule 41(d) applies to a plaintiff who previously dismissed a case 'in any court,' not necessarily a case refiled in the same venue"); see also Bagley v. Tucker, No. 4:12CV611-WS/CAS, 2013 WL 1912580, at *1 (N.D. Fla. Feb. 25, 2013). Thus, in deciding whether attorneys' fees and costs should be awarded pursuant to Rule 41(d), this court relies both on the jurisdiction of the court to enforce a conditional dismissal, Natl. Mar. Services, Inc., 776 F.3d at 786, and the express language of the Rule 41(d), Russell-Brown, 270 F.R.D. at 660.
“The mere addition of a defendant or a new claim or two does not prevent the application of Rule 41(d) so long as there are claims in the new case that arise from the same nucleus of operative facts such that the new case can be said to be ‘based on or including' previously brought and dismissed claims.” Russel-Brown v. Jerry, II, 270 F.R.D. 654, 660 (N.D. Fla. 2010). The FAC here is not limited to its exemplars.
Indeed, Fed. R. Civ. P. 41(d) intended to protect defendants against "the unfairness of duplicative litigation," which inherently places the risk of the same on plaintiffs. See Russell-Brown v. Jerry, II, 270 F.R.D. 654, 661 (N.D. Fla. 2010); see also HControl Holdings, LLC v. Bright House Networks, LLC, No. 8:13-CV-39-T-AAS, 2017 WL 625314, at *2 (M.D. Fla. Feb. 15, 2017) (noting that one purpose of Fed. R. Civ. P. 41(d) is to deter a plaintiff from wasting litigant expenses). Accordingly, the Undersigned finds that Plaintiff's attempt to limit recovery here lacks merit.
In this case, although Plaintiff has now asserted a claim for declaratory relief rather than a claim for breach of contract, the Court finds that issues in Monterey I and Monterey III are based upon the same nucleus of operative facts. See Russell-Brown v. Jerry, II, 270 F.R.D. 654, 660 (N.D. Fla. 2010) ("Rule 41(d) applies to any refiled case 'based on or including' the same claims previously voluntarily dismissed. Thus, the mere addition of a defendant or a new claim or two does not prevent the application of Rule 41(d) so long as there are claims in the new case that arise from the same nucleus of operative facts such that the new case can be said to be 'based on or including' previously brought and dismissed claims.").
Such conditions may include assessment of costs and fees in appropriate circumstances. See, e.g., Russell-Brown v. Jerry, II, 270 F.R.D. 654, 661 (N.D. Fla. 2010) ("In dismissing a case under Rule 41(a)(2), a court may assess costs and fees associated with the action.") (citation omitted). "The crucial question to be determined is, would the defendant lose any substantial right by the dismissal."
Such conditions may include assessment of costs and fees in appropriate circumstances. See, e.g., Russell-Brown v. Jerry, II, 270 F.R.D. 654, 661 (N.D. Fla. 2010) ("In dismissing a case under Rule 41(a)(2), a court may assess costs and fees associated with the action.") (citation omitted); Ortega v. Banco Central del Ecuador, 205 F.R.D. 648, 653 (S.D. Fla. 2002) ("The Court applies the American rule that attorneys' fees and costs should be awarded for wasted efforts."); Anderberg v. Masonite Corp., 176 F.R.D. 682, 687 (N.D. Ga. 1997) ("it is clear a court may cure any prejudice to a defendant by conditioning a Rule 41(a) dismissal on the moving party's payment of some of the costs and expenses borne by the other party in the action") (citation omitted). After careful consideration of the parties' filings, the Court exercises its discretion to grant plaintiff's Motion for Voluntary Dismissal Without Prejudice without assessing costs and attorney's fees against plaintiff.
The cases cited by Defendant in support of this argument are easily distinguishable in that they stand for the proposition that the Court may award fees and costs when an entire action is voluntarily dismissed after the defendant has incurred significant litigation expenses. See Russell-Brown v. Jerry, II, 270 F.R.D. 654 (N.D. Fla. 2010). Plaintiffs here do not seek to dismiss this action in its entirety; rather, they seek to have it prosecuted by one individual rather than two.