Johnson v. Professional Clinical Laboratory, Inc.

Filing 26

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 3/14/13. (SAC )

FILED
2013 Mar-14 PM 03:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHIRLEY JOHNSON,

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Plaintiff,
v.
PROFESSIONAL CLINICAL
LABORATORY, INC., et al.,

CIVIL ACTION NO.
2:12-CV-00579-WMA

Defendants.
MEMORANDUM OPINION
The court has before it a motion to dismiss without prejudice
filed

by

plaintiff,

Shirley

Johnson

(“Johnson”),

(Doc.

22),

together with the report from the magistrate judge recommending
that the motion be granted on the condition that Johnson pay to
defendant Professional Clinical Laboratory, Inc. (“PCL”) its cost
of removal if the action is refiled.

(Doc. 24).

The time to

object to the magistrate judge’s report has passed with neither
party having filed an objection.

For the reasons below, the court

agrees with the magistrate judge’s recommendation.
motion

to

dismiss

without

prejudice

will

be

Johnson’s

granted

on

the

condition that Johnson pay PCL’s cost of removal if the action is
refiled.
Background
Johnson, a pro se litigant, filed this action against Brandi
Miciotto (“Miciotto”) and PCL in state court in December 2011.
Almost a year later, after the case was timely removed, Johnson

filed this motion to dismiss without prejudice asserting that she
is no longer able to focus adequate attention on the case. Johnson
is the guardian of her two grandchildren, one of whom has special
needs.

Also, she has been unemployed since July 2010.

These

circumstances have made it necessary for her to relocate from
Alabama to her hometown in Missouri. Based on these facts, Johnson
moves for a dismissal of the action without prejudice.
Discussion
Miciotto has not filed an answer or a summary judgment motion.
Johnson’s motion, therefore, must be granted as against Miciotto.
See Fed. R. Civ. P. 41 (a)(1)(A)(I).
PCL has filed an answer and objects to the motion. Therefore,
the action as against PCL can only be dismissed with a court order.
Fed. R. Civ. P. 41 (a)(1)(A).

PCL argues that the court should (1)

deny Johnson’s motion, (2) grant Johnson’s motion conditioned on
her paying PCL’s attorneys’ fees and costs, or (3) dismiss the
action with prejudice.
The decision of whether to permit a voluntary dismissal rests
within the “broad discretion” of the district court. Pontenberg v.
Boston Scientific Corp., 252 F.3d 1253, 1255 (11th Cir. 2001).
“[I]n most cases, a voluntary dismissal should be granted unless
the defendant will suffer clear legal prejudice, other than the
mere prospect of a subsequent lawsuit, as a result.”

Id. (quoting

McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857 (11th Cir.
2

1986)).

The court must ask itself, “Would the defendant lose any

substantial right by the dismissal.” Id. (quoting Durham v. Fla. E.
Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967)).
PCL has not articulated how any of its “substantial rights”
would be affected by dismissing Johnson’s action without prejudice.
PCL’s only

arguments

are

that

Johnson

was

not

“diligent” in

bringing her motion and that she was “unduly vexatious” by not
responding to discovery requests.
clear

that

“delay

alone,

in

Eleventh Circuit case law is

the

absence

of

bad

faith,

is

insufficient to justify dismissal with prejudice.” Pontenberg, 252
F.3d at 1259.

There are no allegations of bad faith.

This conclusion, however, does not end the analysis.

Next, a

district court must “weigh the relevant equities” in order to “do
justice between the parties.”

McCants, 781 F.2d at 857.

This is

the step where the court determines if the plaintiff should be
required to pay any of the defendant’s fees or costs as a condition
of the dismissal without prejudice. The court looks at whether the
defendant has accumulated considerable expense in preparing for
trial, whether the effort expended in the current litigation will
be useful if a subsequent lawsuit is filed, and whether there are
non-monetary

conditions

that

could

defendant might otherwise suffer.

alleviate

Id. at 860.

any

prejudice

a

In addition to its

discretion to equalize the effects of a dismissal without prejudice
by requiring a plaintiff to reimburse a defendant, the court may

3

impose a condition that if the plaintiff refiles her lawsuit, she
may be required to pay some or all of the defendant’s fees and
costs in defending the initial action.

See Vera Prods., Inc. v.

Home Depot U.S.A., Inc., 387 F.3d 1325, 1328-29 (11th Cir. 2004).
PCL has filed a notice of removal, an answer, two motions to
dismiss, and a response to the present motion.

PCL has also served

Johnson with interrogatories, requests for production, requests for
admission, and a notice of deposition.

Some of PCL’s said efforts

would be and some would not be useful if Johnson refiled her
action.

This loss, however, is minimal.

To the extent that PCL

has incurred costs related to discovery, its work product in that
regard can be reused, and any information it has obtained will be
relevant in a subsequent action.
On the other hand, Johnson is an unemployed, pro se litigant.
She is also the caregiver for her two minor grandchildren. She has
moved back to Missouri for financial reasons, among others.

To

require her to pay PCL’s total legal costs to date would be
extremely

burdensome

upon

her

and

likely

uncollectible.

Additionally, to condition the right to refile the action on the
payment of all of PCL’s fees and costs would, as a practical
matter, equate of a dismissal of the action with prejudice, working
as an absolute barrier to a re-filing.
To strike a balance between these competing interests, the
magistrate judge recommended that Johnson be required to pay PCL’s

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cost of removal IF she refiles.

This recognizes that PCL incurred

expenses in this action, but also that those expenses are bearable.
This condition takes into account Johnson’s limited resources and
is intended not to be a bar to her refiling the action. The court
agrees with the magistrate judge’s recommendation and adopts it.
Conclusion
For the foregoing reasons, Johnson’s motion to dismiss without
prejudice will be granted on the condition outlined above.

DONE this 14th day of March, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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