Kizer v. Bank of New York Mellon Trust Company
ORDER granting in part and denying in part 11 Order on Motion to Confirm Arbitration Award; granting in part and denying in part 13 Motion to Supplement as follows: Defendant's motion to confirm arbitration is DENIED and Defendant's request for dismissal of Plaintiff's action without prejudice is GRANTED. This action is DISMISSED without prejudice. Signed by Chief Judge Kristi K. DuBose on 5/8/2017. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ELAINE HALLMARK KIZER,
BANK OF NEW YORK MELLON
CIVIL ACTION 16-00487-KD-C
This matter is before the Court on Defendant Bank of New York Mellon Trust
Company’s “Motion to Confirm Arbitration Award” (Doc. 11) and Supplement (Doc. 13) to the
Court’s Order (Doc. 12).
While Plaintiff was provided with the opportunity to file an objection
to Defendant’s motion and supplement by May 4, 2017, no objection was filed.
Specifically, on April 20, 2017, the Court ordered as follows:
As for the substantive relief Defendant seeks – for the undersigned to confirm the
arbitrator’s award and “have it entered as a final judgment of the Court.” There is
insufficient information before the Court to do so. [ ] The April 18, 2017 Arbitrator’s
Decision states merely that Defendant’s motion for summary judgment is granted with “a
final finding…entered in favor of” of Defendant, and that the $1,360 arbitrator’s fee is
assessed to Defendant. (Doc. 11-1 at 2). There is nothing more before the Court (e.g.,
no awards/amounts specified). In its singular sentence motion, Defendant cites
PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1305-1306 (11th Cir. 2016) (in which a
defendant sought to confirm a zero dollar award). As such, Defendant is ORDERED to
file a Supplement to its motion, on or before April 27, 2017, clarifying the relief it seeks
and authority for that relief. Specifically, if they are seeking to confirm an entry of
summary judgment (as opposed to a specific award amount), the court requests briefing
on the authority to enter such a confirmation.
It is ORDERED that any objection by Plaintiff to the Defendant’s motion (Doc. 11) and
forthcoming Supplement shall be filed on or before May 4, 2017.
(Doc. 12 (footnoted omitted)).
In response, Defendant filed a Supplement (Doc. 13), with which it has provided copies
of the summary judgment motion, response and reply, which was ruled upon via arbitration.
so doing, Defendant notes that “the Arbitrator issued his award (Arbitrator’s Decision)”.
(Doc. 13 at 2). Defendant does not indicate there is any arbitrator’s award per se (i.e., monetary
Defendant suggests that as an alternative to confirming the arbitration award, if needed,
“the Court should simply dismiss this case, without prejudice.” (Doc. 13 at 3-4).
filed no objection to either of Defendant’s requests (to confirm or dismiss).
“’[A]rbitration awards are not self-enforcing, [but]…must be given force and effect by
being converted to judicial orders’ on an appropriate motion to confirm....” Mulhall v. UNITE
HERE Local 355, 618 F.3d 1279, 1293 (11th Cir. 2010).
At the outset, Defendant has still not
shown that there is “an award” for this Court to confirm, and the undersigned can discern none.
Rather, there is simply a decision from the Arbitrator – a summary judgment ruling – that
Defendant seeks to have “confirmed” as the “final judgment” of this Court.
(Doc. 13 at 4).
The Arbitrator’s ruling with regard to Defendant’s summary judgment consists, in total, of the
following: “After reviewing all of the pleadings, I find that the Motion for Summary
Judgment…is due to be granted and a final finding is hereby entered in favor of the Respondent
[Defendant] on this date. The arbitrator’s fee…is assessed to the Respondent [Defendant] in the
amount of $1,360.00.”
(Doc. 13-1 at 106).
The Defendant has failed to cite any legal
authority to enter a confirmation to a summary judgment, and this court declines to do so.
The Court finds that the better course is to address the alternative requested by Defendant
– to dismiss Plaintiff’s case without prejudice.
Rule 41 governs dismissals and any dismissal
based on Defendant’s alternative request 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.
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….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.’…..
Additionally, the Eleventh Circuit specified 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.
... 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
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)…. when courts have denied
a….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.
After consideration of the relevant factors, the Court finds that dismissal of this action
without prejudice is appropriate, particularly given the absence of any objection by Plaintiff.
Accordingly, it is ORDERED that Docs. 11,13 are GRANTED in part and DENIED in part as
follows: Defendant’s motion to confirm arbitration is DENIED and Defendant’s request for
dismissal of Plaintiff’s action without prejudice is GRANTED. As such, it is ORDERED that
this action is hereby DISMISSED without prejudice.
DONE and ORDERED this the 8th day of May 2017.
/s/ Kristi K DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE
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