Brown et al v. Dirga et al

Filing 108

RULING denying 104 MOTION for Voluntary Dismissal, MOTION for Hearing. Signed by Judge Sarah A. L. Merriam on 11/10/2016. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
FRANKLIN BROWN
:
:
v.
:
:
FREDRICK DIRGA
:
:
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Civil No. 3:15CV01086(JCH)

November 10, 2016

RULING ON MOTION FOR VOLUNTARY DISMISSAL [Doc. #104]
Pending before the Court is a motion by self-represented
plaintiff Franklin Brown (“plaintiff”) to voluntarily dismiss
this pending matter, pursuant to Rule 41(a)(2) of the Federal
Rules of Civil Procedure. [Doc. #104]. Defendant has filed an
opposition to the motion. [Doc. #106]. For the reasons set forth
below, plaintiff’s motion is DENIED.
I.

Legal Standard
Pursuant to Rule 41 of the Federal Rules of Civil

Procedure, after defendant has filed an answer and in the
absence of a stipulation, a plaintiff may voluntarily dismiss
his case “only by court order, on terms that the court considers
proper.” Fed. R. Civ. P. 41(a)(2). Rule 41(a) further provides
that “[u]nless the order states otherwise, a dismissal under
this paragraph (2) is without prejudice.” Id. However,
“[v]oluntary dismissal without prejudice is [] not a matter of
right.” Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990).

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“The court has discretion to deny voluntary withdrawal.” Brown
v. Nat’l R.R. Passenger Corp., 293 F.R.D. 128, 130 (E.D.N.Y.
2013); see also Fed. Ins. Co. v. Speedboat Racing Ltd., No.
3:12CV1480(CSH), -- F. Supp. 3d --, 2016 WL 4250222, at *17 (D.
Conn. Aug. 9, 2016).
“[T]he test for dismissal without prejudice involves
consideration of various factors[.]” Kwan v. Schlein, 634 F. 3d
224, 230 (2d Cir. 2011). These factors include
the plaintiff’s diligence in bringing the motion; any
“undue vexatiousness” on plaintiff’s part; the extent to
which the suit has progressed, including the defendant’s
effort and expense in preparation for trial; the
duplicative expense of relitigation; and the adequacy of
plaintiff’s explanation for the need to dismiss.
Zagano, 900 F.2d at 14 (collecting cases). “The extent to which
a suit has progressed is considered by many courts in the Second
Circuit to be of primary importance. This is so in part because
the length of time which an action has been pending goes to the
extent which a defendant will be prejudiced by a dismissal
without prejudice.” Roh v. Devack, No. 3:07CV1901(CSH), 2011 WL
1363789, at *3 (D. Conn. Apr. 11, 2011) (quotation marks and
citation omitted). No single factor is dispositive, however.
See, e.g., Soul Circus, Inc. v. Trevanna Entm’t, Inc., 249
F.R.D. 109, 111 (S.D.N.Y. 2008) (“To be sure, this action has
not progressed very far, and there would be little to
relitigate. But plaintiff’s failure to offer a persuasive reason

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for dismissal without prejudice, the vexatious nature of its
actions, its attempt to avoid a prompt resolution in a forum no
longer to its liking, and its failure to seek such a dismissal
earlier all weigh in favor of the defendants.”).
II.

Discussion
Plaintiff seeks to voluntarily dismiss this case, claiming

that he “filed the case wrong and no longer want[s] to proceed.”
Doc. #104 at 1. His motion requests dismissal, conditioned on an
assurance or order that said dismissal would not “bar” his other
pending action, case number 3:16CV01180(JCH), Franklin Brown v.
Fredrick Dirga, et al. (hereinafter “16CV1180”). Id. Defendant
opposes plaintiff’s motion, arguing that any dismissal of this
matter should be with prejudice, and should not dictate the
outcome of defendant’s pending motion to dismiss in 16CV1180.
See Doc. #106 at 1.
After a consideration of the factors set forth above, the
Court denies plaintiff’s motion to dismiss his case without
prejudice. This matter is far progressed. The case has been
pending for over a year, during which time plaintiff has filed
no fewer than fifteen motions necessitating responses by
defendant. During the course of the litigation, plaintiff
voluntarily dismissed defendant DelMauro from the action, and
the case has continued without him. Fact discovery is now
complete, and the deadline for the filing of dispositive motions
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is imminent. Defendant would be unduly prejudiced by a dismissal
without prejudice at this stage in the proceedings, especially
considering that defendant would incur significant duplicative
expenses if required to relitigate the matter.
Furthermore, the plaintiff has not proffered an adequate
explanation for his request to dismiss the case without
prejudice. It appears that plaintiff seeks to abandon the
instant matter in order to pursue his later-filed lawsuit,
16CV1180.1 Plaintiff’s complaint in 16CV1180 was commenced in
state court on May 15, 2016, and removed by the defendants in
that action on July 14, 2016. This case was filed on July 15,
2015, almost exactly one year earlier. The claims alleged in
16CV1180 arise from the same set of facts as those that gave
rise to the instant matter.
It is the general rule that “where there are two competing
lawsuits, the first suit should have priority, absent the
showing of balance of convenience in favor of the second action,
or unless there are special circumstances which justify giving
priority to the second.” Fort Howard Paper Co. v. William D.
Witter, Inc., 787 F.2d 784, 790 (2d Cir. 1986). “Simple
dismissal of the second suit is [a] common disposition because

There is a pending motion in 16CV1180 by plaintiff to amend his
complaint [Doc. #19] and to remand the matter to state court
[Doc. # 23]. A motion to dismiss filed by defendants is also
pending. [Doc. #13].
1

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plaintiff[] [has] no right to maintain two actions on the same
subject in the same court, against the same defendant at the
same time.” Curtis v. Citibank, N.A., 226 F.3d 133, 138–39 (2d
Cir. 2000); see also Odesina v. Saint Francis Hosp., No.
3:01CV1091(PCD), 2002 WL 32500865, at *1 (D. Conn. Feb. 26,
2002) (“Dismissal is appropriate where an identity of issues
exists and the controlling issues in the dismissed action will
be determined in the other lawsuit.”). Plaintiff’s motion to
dismiss appears designed to evade this rule, and to undo his
earlier dismissal of defendant DelMauro, by proceeding with the
later-filed case, which includes DelMauro as a defendant.
The Court cannot provide plaintiff with the relief he
seeks; namely, a dismissal of the instant matter that would
permit his second-filed case to proceed without impediment.
Plaintiff may elect to dismiss this case, with prejudice, but he
is cautioned that a dismissal with prejudice might prevent him
from refiling his claims against the defendants in this matter.
The Court is not inclined to make plaintiff any guarantees about
the disposition of the claims in 16CV1180.
III. Conclusion
Accordingly, for the reasons set forth above, plaintiff’s
Motion for Voluntary Dismissal is DENIED. The Court will not
dismiss plaintiff’s case without prejudice. This matter will
remain open and pending. Should plaintiff wish to voluntarily
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dismiss this case with prejudice, plaintiff may do so by filing
a stipulation of dismissal or by filing a motion that conveys
the appropriate information to the Court.
The Court further finds that no hearing is necessary on
this motion, so plaintiff’s motion for a hearing is DENIED.
This is not a Recommended Ruling. This is an order
regarding case management which is reviewable pursuant to the
“clearly erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 10th day of
November 2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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