Landrum v. Georgia-Pacific LLC et al

Filing 40

ORDER granting 36 Motion to Dismiss. This matter is dismissed without prejudice, with each party to bear its own attorneys' fees and costs. Signed by Judge Kristi K. DuBose on 1/25/2017. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROOSEVELT LANDRUM,
Plaintiff,
v.
GEORGIA-PACIFIC CONSUMER
PRODUCTS LP,
Defendant.

)
)
)
)
CIVIL CASE 16-00399-KD-M
)
) MEMBER CASE NO. 16-cv-00479-KD-M
)
)
ORDER

This matter is before the Court on Plaintiff Roosevelt Landrum’s motion to dismiss (Doc.
36), Defendant Georgia Pacific Consumer Products LP’s response with objections and Rule
41(a)(2) Proposed Order (Docs. 37, 37-1), and Landrum’s Reply (Doc. 39).
At the outset, Rule 41 governs dismissals. Plaintiff seeks to voluntarily dismiss his
remaining claims against the Defendant. Defendant filed an Answer. (Doc. 2). Defendant also
did not join in Plaintiff’s motion such that it is not a stipulation of dismissal. As such, any
dismissal based on Plaintiff’s motion must be accomplished pursuant to Rule 41(a)(2) of the
Federal Rules of Civil Procedure, on terms the Court considers proper, via Court order:
Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request
only by court order, on terms that the court considers proper. If a defendant has pleaded a
counterclaim before being served with the plaintiff's motion to dismiss, the action may be
dismissed over the defendant's objection only if the counterclaim can remain pending for
independent adjudication. Unless the order states otherwise, a dismissal under this
paragraph (2) is without prejudice.
Fed.R.Civ.P. Rule 41(a)(2).
In assessing Rule 41(a)(2) motions, with regard to the Court's discretion, and as
enunciated in Fountain v. Forniss, 2013 WL 360261, *3 (N.D. Ala. Jan. 25, 2013):
The decision to grant or deny a Rule 41(a)(2) motion to dismiss an action without
prejudice is entrusted to the sound discretion of the district court; thus, a plaintiff holds

no right to such dismissal. What is more, in exercising its discretion, the court must ‘keep
in mind the interests of the defendant, for Rule 41(a)(2) exists chiefly for protection of
defendants.’ ‘In this instance, the respondents were required to answer the petitioner's
claims and were required to locate, collect, and submit the relevant record. They have
demonstrated the absence of any right to further review. To permit a dismissal without
prejudice is not fair to the respondents or justified under the circumstances. Accordingly,
this matter is due to be dismissed with prejudice.’ (quoting In re Bayshore Ford Trucks
Sales, Inc., 471 F.3d 1233, 1259 (11th Cir.2006) (in turn quoting Fisher v. P.R. Marine
Mgmt., Inc., 940 F.2d 1502, 1503 (11th Cir.1991)))).
The Eleventh Circuit specified further in Pontenberg v. Boston Scientific Corp., 252 F.3d 1253,
1255–1256, 1259 (11th Cir. 2001) (footnotes omitted) that:
The district court enjoys broad discretion in determining whether to allow a voluntary
dismissal under Rule 41(a)(2). McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857 (11th
Cir.1986). “[I]n most cases, a voluntary dismissal should be granted unless the defendant
will suffer clear legal prejudice, other then the mere prospect of a subsequent lawsuit, as
a result.” Id. at 856–57. “The crucial question to be determined is, Would the defendant
lose any substantial right by the dismissal.” Durham v. Florida East Coast Ry. Co., 385
F.2d 366, 368 (5th Cir.1967). In exercising its “broad equitable discretion under Rule
41(a)(2),” the district court must “weigh the relevant equities and do justice between the
parties in each case, imposing such costs and attaching such conditions to the dismissal as
are deemed appropriate.” McCants, 781 F.2d at 857. Accordingly, we review a district
court's decision to allow a voluntary dismissal without prejudice under Rule 41(a)(2) only
for an abuse of discretion. Id.
***
Pontenberg sought to dismiss her action…after the discovery period had expired and after
her expert reports had been excluded from the record as a result of her attorney's failure
to timely comply with the expert disclosure requirements of Rule 26. Boston Scientific
objected to a voluntary dismissal without prejudice. Boston Scientific claimed that a
dismissal without prejudice was inappropriate at this juncture in the litigation because it
had invested considerable resources, financial and otherwise, in defending the action,
including by preparing the then pending summary judgment motion. Additionally, Boston
Scientific argued that dismissal without prejudice was improper because Pontenberg had
failed to diligently prosecute the action.[]
***
…the district court did not abuse its broad discretion in allowing Pontenberg to dismiss
voluntarily her action…without prejudice under Rule 41(a)(2). 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. See
Durham v. Florida East Coast Ry. Co., 385 F.2d 366 (5th Cir.1967).
***
Under our circuit precedent, delay alone, in the absence of bad faith, is insufficient to
justify a dismissal with prejudice, even where a fully briefed summary judgment motion

2

is pending. See Durham, 385 F.2d at 368; McCants, 781 F.2d at 858.
And while the Eleventh Circuit “has not explicitly adopted factors that a trial court should
evaluate” when assessing a Rule 41(a)(2) motion to dismiss with or without prejudice,
“substantial discretion is vested in the district court to determine and implement a just
resolution.” BMC–The Benchmark Mgmt. Co. v. Ceebraid–Signal Corp., 2007 WL 2126272, *5
(N.D. Ga. July 23, 2007) (citations omitted). Notably, when courts have denied a plaintiff's Rule
41(a)(2) motion to dismiss without prejudice, the following factors were important
considerations: the length of time and amount of resources spent by the defendant, dilatory
tactics on the part of the plaintiff and the presence of a pending summary judgment motion. Id.
In this case, Plaintiff initially sought to voluntarily dismiss all of his remaining claims,
not specifying whether with or without prejudice. In response, Defendant objected to some of
the language in Plaintiff’s motion but agreed that all of his claims against it should be dismissed,
but with prejudice, each party to bear his or its own costs and attorneys’ fees. (Doc. 37). In so
contending, Defendant failed to provide any explanation as to why the dismissal should be with
prejudice. In reply, Plaintiff makes clear, and asserts, that he only seeks to voluntarily dismiss
his claims against the Defendant if they are dismissed without prejudice, but that if the Court is
inclined to dismiss them with prejudice, his motion is withdrawn. (Doc. 39).
Turning to the relevant factors, supra, Defendants removed this case from state court to
this Court on July 25, 2016 (Doc. 1) and subsequently litigated Plaintiff’s motion to remand
(Doc. 4) from September to November of 2016. Plaintiff’s motion to remand was granted in part
and denied in part, with some claims being remanded to the Circuit Court of Choctaw County,
Alabama. (Docs. 23, 31). While Defendant may have spent a significant time and/or resources
litigating this case thus far, there is no indication of such being “excessive.” Additionally, there

3

is nothing before the Court indicating dilatory tactics on the part of Plaintiff. Moreover, there is
no pending summary judgment motion. Moreover, the Defendant has not even argued, and there
is nothing suggesting, that it will suffer clear legal prejudice or lose any substantial right, if the
dismissal is without prejudice.
Upon consideration, it is ORDERED that all of Plaintiff Roosevelt Landrum’s remaining
claims against Defendant Georgia Pacific Consumer Products LP are hereby DISMISSED
without prejudice, with each party to bear his or its own attorneys’ fees and costs.
DONE and ORDERED this 25th day of January 2017.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

4