Horizon Bank, National Association v. Musikantow

Filing 20

ORDER: Plaintiff's Motion to Authorize Voluntary Dismissal 15 is granted on the condition that if Plaintiff chooses to refile its complaint against Defendant at a later time, Plaintiff shall pay costs associated with this action, which sha ll include an amount of Defendant's reasonable attorney's fees incurred in this action. Plaintiff shall inform the Court within seven (7) days from the date of this Order as to whether it agrees to the condition described in Paragraph 1, o r instead wishes to withdraw its motion to dismiss and proceed with the case in this forum. Plaintiff's alternative request to stay these proceedings is denied for the reasons stated in Defendant's response. Signed by Judge James S. Moody, Jr on 4/27/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

HORIZON BANK, NATIONAL
ASSOCIATION,
Plaintiff,
v.

Case No: 5:15-cv-584-Oc-30PRL

ALLEN S. MUSIKANTOW,
Defendant.
________________________________/

ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion to Authorize
Voluntary Dismissal (Doc. 15), Defendant’s Response in Opposition (Doc. 16), and
Plaintiff’s Reply (Doc. 19). The Court, having reviewed the motion, response, and reply,
and being otherwise fully advised in the premises, concludes that the motion should be
granted in part with conditions.
DISCUSSION
Plaintiff’s motion seeks, in relevant part, leave to dismiss its case under Fed. R.
Civ. P. 41(a)(2) without prejudice. Federal Rule of Civil Procedure 41(a)(1)(A) provides
that a “plaintiff may dismiss an action without a court order by filing: (i) a notice of
dismissal before the opposing party serves either an answer or a motion for summary
judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared.” Fed.
R. Civ. P. 41(a)(1)(A) (emphasis added). Where a defendant, like Defendant in this case,
has already served an answer, “an action may be dismissed at the plaintiff’s request only

by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2)
(emphasis added).
Generally, “[a] district court enjoys broad discretion in determining whether to
allow a voluntary dismissal under Rule 41(a)(2).” Arias v. Cameron, 776 F.3d 1262,
1268 (11th Cir. 2015) (citing Pontenberg v. Bos. Scientific Corp., 252 F.3d 1253, 1255
(11th Cir. 2001) (per curiam)). “In most cases, a voluntary dismissal should be granted
unless the defendant will suffer clear legal prejudice, other than the mere prospect of a
subsequent lawsuit, as a result.” Pontenberg, 252 F.3d at 1255 (emphasis in original)
(citing McCants v. Ford Motor Co., 781 F.2d 855, 856-57 (11th Cir. 1986)). “The crucial
question to be determined is, [w]ould the defendant lose any substantial right by the
dismissal.” Pontenberg, 252 F.3d at 1255 (citing Durham v. Fla. E. Coast Ry. Co., 385
F.2d 366, 368 (5th Cir.1967)). In exercising its broad equitable discretion under Rule
41(a)(2), the “court should 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.” Arias, 776 F.3d at 1269 (citing McCants, 781 F.2d at 857).
Defendant opposes Plaintiff’s motion to the extent that Defendant contends that
the Court should condition the dismissal on payment of Defendant’s attorney’s fees and
costs incurred in this case to date. In light of this opposition, the Court turns to the
relevant factors with respect to weighing the equities to determine the appropriate
resolution.
This is a post-judgment collection action; Plaintiff filed a two-page complaint on
November 16, 2015, to collect on a judgment that was entered against Defendant in
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Wisconsin.1 (Doc. 1). On January 8, 2016, Defendant filed its three-page answer. (Doc.
10). The parties participated in a case management conference and filed their case
management report on February 5, 2016. (Doc. 11). Plaintiff filed the instant motion on
March 11, 2016. (Doc. 15). These facts demonstrate that this case has not been heavily
litigated and is still in its infancy. These facts also demonstrate that this case has not been
highly technical or complicated. Defendant has not shown that he would “lose any
substantial right” by a dismissal without prejudice, other than possibly having to litigate
again with Plaintiff in the future. Defendant also has not shown evidence of bad faith on
Plaintiff’s part. See Pontenberg, 252 F.3d at 1257-58 (discussing the significance of
evidence demonstrating bad faith on the part of counsel in applying a Rule 41(a)(2)
analysis). Under these circumstances, the Court concludes that Defendant’s arguments
are insufficient to demonstrate clear legal prejudice.
However, the Court acknowledges the practical prejudice of the attorney’s fees
that Defendant has incurred in defending this action, especially in light of Defendant’s
argument that Plaintiff will likely refile this action in Wisconsin and Defendant will have
to retain Wisconsin counsel to defend that action. The Court finds it appropriate to attach
conditions to the dismissal. Accordingly, it is ORDERED AND ADJUDGED that:
1.

Plaintiff’s Motion to Authorize Voluntary Dismissal (Doc. 15) is granted on

the condition that if Plaintiff chooses to refile its complaint against Defendant at a later
time, Plaintiff shall pay costs associated with this action, which shall include an amount
of Defendant’s reasonable attorney’s fees incurred in this action.
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Defendant is a Florida citizen.

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2.

Plaintiff shall inform the Court within seven (7) days from the date of this

Order as to whether it agrees to the condition described in Paragraph 1, or instead wishes
to withdraw its motion to dismiss and proceed with the case in this forum.
3.

Plaintiff’s alternative request to stay these proceedings is denied for the

reasons stated in Defendant’s response.
DONE and ORDERED in Tampa, Florida on April 27, 2016.

Copies furnished to:
Counsel/Parties of Record

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