American Registry, LLC v. Hanaw et al

Filing 72

OPINION AN ORDER granting 66 Motion for voluntary dismissal with prejudice to the extent that the case is dismissed with prejudice without further conditions. The Clerk shall enter judgment dismissing the case with prejudice, terminate all pending motions, and close the file. Defendants may file any motions for attorney's fees and/or costs as provided by law. Signed by Judge John E. Steele on 12/5/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AMERICAN
Delaware
company,

REGISTRY, LLC, a
limited liability

Plaintiff,
v.

Case No: 2:13-cv-352-FtM-29CM

YONAH HANAW, MICHAEL LEVY,
SHOWMARK HOLDINGS, LLC, a
Delaware limited liability
company, and SHOWMARK MEDIA,
LLC,
a
Delaware
limited
liability company,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Verified
Motion for Voluntary Dismissal With Prejudice (Doc. #66) filed on
October 23, 2014.

Defendants filed a Response in Opposition (Doc.

#68) to the request, seeking to reach the merits of the claims or
to receive their incurred attorney’s fees and costs.

On November

7, 2014, the Court took the Verified Motion under advisement and
provided the parties an opportunity to resolve the matter or for
plaintiff to file a Reply.

(Doc. #69.)

On November 17, 2014,

plaintiff filed a Reply (Doc. #71) stating that the parties were
unable to reach an agreement, and seeking dismissal with prejudice
but without costs or attorney’s fees.

Plaintiff is proceeding on a portion of a Third Amended
Complaint (Doc. #36), to which an Answer (Doc. #62) has been filed.
(Doc.

#61.)

uncomfortable

To
with

oversimplify,
the

plaintiff

credibility

of

its

has

now

primary

become

source

of

information (referred to by the initials PR), who plaintiff asserts
is now offering his testimony to the highest bidder.

Plaintiff

seeks to dismiss all its claim against defendants with prejudice,
but seeks a condition that it not be required to pay attorney fees
or costs.

Defendants oppose the dismissal, even with prejudice,

asserting

a

“vested

interest”

in

continuing

the

litigation,

vindicating themselves, and potentially obtaining attorney fees
and costs.
This action is governed by Rule 41(a)(2), which provides that
“an action may be dismissed at the plaintiff's request only by
court order, on terms that the court considers proper.”
Civ. P. 41(a)(2).
judgment
concedes.

on

the

Fed. R.

A dismissal with prejudice will operate as a
merits

in

favor

of

defendants,

as

plaintiff

The Court rejects defendants’ position that they have

a vested interest in continuing the litigation, and finds that no
prejudice

will

result

to

defendants

upon

such

a

dismissal.

Dismissal with prejudice will place defendants in no worse of a
position than if they had prevailed on a summary judgment motion
or at trial.

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The Court is unwilling, however, to condition the dismissal
with prejudice upon either the granting or denying of attorney
fees and costs.

Upon dismissal, defendants may seek attorney fees

and/or costs in the same manner as any defendant who has prevailed
on the merits.

Whether defendants are entitled to such fees, and

the amounts, are left for another day.
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Verified Motion for Voluntary Dismissal With
Prejudice (Doc. #66) is GRANTED to the extent that the case
is dismissed with prejudice, and is DENIED to the extent
that plaintiff or defendants seek to further condition the
dismissal.

The Clerk shall enter judgment dismissing the

case with prejudice against all defendants.
2. The Clerk shall further terminate all pending motions and
deadlines as moot and close the file.
3. Defendants may file any motions for attorney fees and/or
costs as provided by law.
DONE and ORDERED at Fort Myers, Florida, this
December, 2014.

Copies:

Counsel of Record

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5th

day of