Bivens et al v. Ball Healthcare Inc

Filing 108

ORDER GRANTING Plf's 105 Motion to Dismiss as set out. Dft's 82 Motion for Sanctions is MOOT as set out. This action is DISMISSED without prejudice & with costs taxed against Plf. A ruling on the award of fees is reserved for consideration as set out. Signed by Senior Judge Callie V. S. Granade on 1/23/19. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BELINDA BIVENS,
Plaintiff,
vs.
BALL HEALTHCARE SERVICES,
INC., d/b/a ROBERTSDALE
REHABILITATION AND HEALTH
CENTER
Defendant.

)
)
)
)
) CIVIL ACTION NO. 18-097-CG-M
)
)
)
)
)

ORDER

This matter is before the Court on Plaintiff, Belinda Bivens’ (“Bivens”),
Motion to Dismiss (Doc. 106). Defendant, Ball Healthcare Services, Inc. (“Ball”) has
responded (Doc. 107). For the reasons set forth hereinbelow, Plaintiff’s Motion is
GRANTED without prejudice and with costs taxed against Plaintiff
BACKGROUND
This action was filed by Plaintiff and three other persons against Defendant
on February 28, 2018. (Doc. 1). Since that time, the parties participated in
discovery, filed multiple discovery motions, attended settlement negotiations and
Defendant filed a motion for summary judgment. (See Court Docket Sheet,
generally). Prior to the filing of the subject motion, three of the four original
Plaintiffs were dismissed and Plaintiff’s FLSA claim was dismissed pursuant to a
settlement agreement. (See Docs. 26, 33, 52, 58). The Court docket reflects
numerous issues that have arisen in this action due to Plaintiff’s failure to respond

to discovery, comply with Court orders, and appear for mandatory hearings. (See
Court Docket Sheet, generally). Plaintiff’s primary counsel, during the mists of
these issues, filed a motion to withdraw as a result of his being suspended by the
Alabama State Bar for a period of two years. (Doc. 89). Following the Court’s order
granting Plaintiff’s primary counsel’s withdrawal, Defendant requested a seven-day
extension to file a motion for summary judgment (Doc. 99), which this Court
granted (Doc. 100). Defendant filed its Motion for Summary Judgment on
November 28, 2018 (Doc. 102), to which Plaintiff’s response was due by December
26, 2018 (Doc. 104). On December 17, 2018, Plaintiff filed the subject Motion to
Dismiss. (Doc. 106). The motion in its entirety is one sentence in which Plaintiff
seeks to “voluntarily dismiss all remaining claims in the above styled matter.” (Id.)
Plaintiff’s motion does not indicate whether her dismissal is requested with or
without prejudice. Plaintiff did not file a response to Defendant’s summary
judgment motion and the time to do so has now lapsed.
On December 18, 2018, Defendant filed its response to Plaintiff’s motion to
dismiss, as ordered by this Court. (Doc. 107). Therein, Defendant did not object to
Plaintiff’s request for dismissal provided all claims are dismissed with prejudice and
with costs taxed against Plaintiff pursuant to Fed.R.Civ.P 54(d)(1). (Id.) Defendant
further stated that if dismissal were granted, it would withdraw its pending motion
for sanctions in this action (Doc. 82)1, but “reserves the right to file a motion for
award of attorney’s fee as provided under Fed.R.Civ.P. 54(d)(2), on the grounds that

1

Defendant’s Motion for Sanctions (Doc. 82) is hereby MOOT.

2

Bivens’ claim in this lawsuit were frivolous, groundless and without foundation. 42
U.S.C. § 1988(b).” (Id.) Although she was not ordered to reply, Plaintiff did not file
a reply or make a request to file a reply. As such, the motion is ripe for
adjudication.
DISCUSSION
Plaintiff’s motion does not state the grounds on which she seeks dismissal.
However, due to the nature of the proceedings, this Court interprets Plaintiff’s
motion to be made pursuant to Fed. R. Civ. P. 41(a)(2). Further, Defendant has not
presented any argument as to why this action should be dismissed with prejudice or
with costs taxed against Plaintiff in its response. (Doc. 107). However, this Court is
familiar with this action and presumes that Defendant’s request for conditions is
based on the position that a dismissal without prejudice would result in unfair
prejudice to Defendant because of the time and resources Defendant has spent
defending this action up until Plaintiff’s motion was filed.
Rule 41(a)(2) provides that, in the absence of either a stipulation of dismissal
signed by all parties or a notice of dismissal filed prior to a defendant's answer or
motion for summary judgment, “an action may be dismissed at the plaintiff's
request only by court order, on terms that the court considers proper.” Id. “The
basic purpose of Rule 41(a)(2) is to freely permit the plaintiff, with court approval,
to voluntarily dismiss an action so long as no other party will be prejudiced.” Versa
Products, Inc. v. Home Depot, USA, Inc., 387 F.3d 1325, 1327 (11th Cir. 2004)
(citation omitted). A dismissal under Rule 41(a)(2) is typically without prejudice.

3

See Fed. R.Civ. P. 42(a)(2) (“…Unless otherwise specified in the order, a dismissal
under this paragraph is without prejudice.”)
“The 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 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.” Id. at 1256 (citation and internal
quotation marks omitted). 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.” Pontenberg, 252 F.3d at 1255. “[I]n most cases a dismissal 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, 857 (11th Cir. 1986) (emphasis omitted).
A. Dismissal With Prejudice
Defendant does not oppose the dismissal of this action. However, it asserts
that such dismissal should be with prejudice, ostensibly, because otherwise, it
would suffer legal prejudice. This Court disagrees. While Defendant has not
presented any specific arguments as to why this action should be dismissed with

4

prejudice, the Court can discern from the case docket that such a position would
rest on the facts that this action has been pending for almost one year during which
time discovery was completed, discovery motions were litigated, depositions
occurred, and a motion for summary judgment was filed. This Court additionally
presumes that Defendant would argue Plaintiff has been dilatory in litigating this
matter and was responsible for added costs due to Plaintiff’s counsel’s actions.
However, even considering the status and nature of the proceedings, there remains
no legal prejudice to Defendant. See Pontenburg, 252 F.3d at 1256 (“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”) citing to Durham v. Florida East Coast Ry. Co., 385 F.2d
366 (5th Cir. 1967). As a result, even taking into consideration the time and
manner in which this action has been litigated, there remains no legal prejudice to
be suffered by Defendant such that Plaintiff’s action should be dismissed with
prejudice. Accordingly, Plaintiff’s dismissal is granted without prejudice.2
B. Award of Costs
Defendant has additionally conditioned its non-opposition to Plaintiff’s
motion for dismissal on the Court’s taxing cost against Plaintiff as provided by Fed.
R. Civ. P 54(d)(1). Defendant has not provided any argument as to why costs should
be taxed against Plaintiff as a condition of dismissal in this action. However, as

It is worth noting that Plaintiff has not asserted that she plans to refile this action in the future,
should the law permit the same.
2

5

discussed hereinabove, the case docket reflects that this action has been pending for
almost one year, discovery has taken place, and Plaintiff filed her motion to dismiss
only after Defendant filed a summary judgment motion. Further, Plaintiff’s motion
is silent on the issue of costs and she has not filed or requested to file a reply to
Defendant’s request.
Rule 54(d)(1) of the Federal Rules of Civil Procedure provides, unless the
Court orders otherwise, that “costs—other than attorney’s fees—should be allowed
to the prevailing party.” Fed. R. Civ. P. 54(d)(1). To be considered a prevailing
party, “there must be: (1) a situation where a party has been awarded by the court
‘at least some relief on the merits of his claim’ or (2) a ‘judicial imprimatur on the
change’ in the legal relationship between the parties.” Smalbein v. City of Daytona
Beach, 353 F.3d 901, 905–07 (11th Cir. 2003) (quoting Buckhannon, 532 U.S. at
603, 605). When a plaintiff’s motion to voluntarily dismiss a claim pursuant to
Federal Rule of Civil Procedure 41(a)(2) is granted by a district court, the defendant
is considered a prevailing party because there has been a “a ‘judicial imprimatur on
the change’ in the legal relationship between the parties.” See Kearney v. Auto–
Owners Ins. Co., 422 Fed.Appx. 812, 818 (11th Cir. 2011). Further, “[t]he purpose of
awarding costs under Rule 41(a)(2) is twofold: to fully compensate the defendant for
reasonable expenses incurred before dismissal and to deter vexatious litigation.”
Bishop v. West American Inc. Co., 95 F.R.D. 494, 495 (N.D. Ga. 1982) (citation
omitted).

6

Because the Motion to Dismiss is being granted pursuant to Rule 41(a)(2),
and the Defendant is the prevailing party, it is within this Court’s discretion to
condition the dismissal of this action on an award of costs. Accordingly, for the
reasons stated above, including the consideration of the course, nature, and length
of time that this action has been pending, and in order to “do justice between the
parties,” McCants, 781 F.2d at 857, the Court finds that it is appropriate to
condition the dismissal without prejudice upon the Plaintiff’s payment of taxable
costs. Defendant is instructed to file its Bill of Costs pursuant to S.D. Ala. CivLR 54.
This Court will reserve any ruling as to fees to be awarded until such time that
Defendant has filed the appropriate motion pursuant to Fed.R.Civ.P 54(d)(2).
CONCLUSION
Plaintiff’s Motion to Dismiss (Doc. 104) is GRANTED and this action is
DISMISSED without prejudice and with costs taxed against Plaintiff. A ruling on
the award of fees is reserved for consideration as set forth herein.
DONE and ORDERED this 23rd day of January, 2019.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

7