Coffey v. Direct General Insurance Agency, Inc.

Filing 78

ORDER adopting 75 Report and Recommendation of the Magistrate Judge. Plaintiff John Coffee's Motion for Voluntary Dismissal 73 is GRANTED in part: a. Plaintiff's claims against Defendant in this action are dismissed. b. Plaintiff is o rdered to pay an award of Defendant's taxable costs pursuant to 28 U.S.C. Section 1920. Defendant is ordered to submit a bill of costs within FOURTEEN (14) DAYS from the date of this Order. Defendant's Request for oral argument 77 is DENIED. The Clerk is directed to terminate all pending motions and deadlines and CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 4/3/2013. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOHN COFFEY,
Plaintiff,
v.

Case No: 6:12-cv-987-Orl-36DAB

DIRECT GENERAL INSURANCE
AGENCY, INC.,
Defendant.
___________________________________/
ORDER
This cause comes before the Court upon the Report and Recommendation filed by
Magistrate Judge David A. Baker on March 14, 2013 (Doc. 75).

In the Report and

Recommendation, Judge Baker recommends that the Court grant Plaintiff John Coffey’s
(“Plaintiff”) Motion to Dismiss Lawsuit (Doc. 73) on the condition that he pay an award of
Defendant Direct General Insurance Agency, Inc.’s (“Defendant”) taxable costs. Doc. 75, p. 6.
On April 1, 2013, Defendant filed an Objection to the Report and Recommendation
(“Objection”) (Doc. 76). The Report and Recommendation is ripe for review.
I.

BACKGROUND
Plaintiff filed a collective action lawsuit against his former employer, alleging violations

of the Fair Labor Standards Act, 29 U.S.C. § 207 (“FLSA”). Doc. 1. Subsequently, Plaintiff
filed eleven Consents to Join for Opt-in Plaintiffs, including employees who resided and worked
in states outside of Florida. Doc. 75, p. 2. When Plaintiff’s motion to amend to add the Direct
General Insurance Agency of another state as a defendant was denied (Doc. 38), a separate
nationwide collective action was filed in Tennessee – the corporate headquarters – against
thirteen Direct General Insurance entities operating in various states. Id. All Opt-in Plaintiffs in

this action have since withdrawn their consents to join this case and have joined the Tennessee
collective action. See Doc. 73.
The sole remaining Plaintiff in this case is Plaintiff John Coffey, who filed a Motion to
Dismiss Lawsuit pursuant to Rule 41(a)(2) “so that Plaintiff and other agents of Direct General
may prosecute their overtime claims together in the Thompson action” filed in Tennessee. Doc.
73, p. 4. Defendant filed a Response, opposing Plaintiff’s Motion to Dismiss Lawsuit (Doc. 74).
In his Report and Recommendation, Magistrate Judge Baker found that Defendant would
only be somewhat prejudiced by Plaintiff’s dismissal at this point. Doc. 75, p. 4. Accordingly,
the Magistrate Judge recommended that the Court grant Plaintiff’s Motion to Dismiss Lawsuit on
the condition that Plaintiff pay an award of taxable costs pursuant to 28 U.S.C. § 1920, to be
determined by Defendant’s submission of a bill of costs. Id. at 6.
On April 1, 2013, Defendant filed an Objection to the Report and Recommendation (Doc.
76), and a Request for oral argument (Doc. 77).
II.

STANDARD
Federal Rule of Civil Procedure 72(b)(2), in pertinent part, provides that “a party may

serve and file specific written objections to the proposed findings and recommendations” of a
magistrate judge. When a party makes a timely and specific objection to a finding of fact in a
Report and Recommendation, the district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C); Jeffrey S. v. State Board of Education of State of Georgia, 896
F.2d 507, 512 (11th Cir. 1990). The district judge may accept, reject, or modify in whole or in
part, the Report and Recommendation of the magistrate judge. Fed. R. Civ. P. 72(b)(3). The

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district judge may also receive further evidence or recommit the matter to the magistrate judge
with further instructions. Id.
III.

ANALYSIS
In his Report and Recommendation, Magistrate Judge Baker recommends that Plaintiff

be allowed to dismiss his case pursuant to Federal Rule of Civil Procedure 41. Doc. 75, pp. 4-6.
Also, Judge Baker found that Defendant has been slightly prejudiced by Plaintiff’s dismissal at
this stage, and is entitled to an award of taxable costs. Id. at 6 (citing Global Aerospace, Inc. v.
Platinum Jet Management, LLC, 2011 WL 1342993, *4 (S. D. Fla. 2011) (holding costs to be
paid in the event that plaintiff re-file its claims against defendant); Pontenberg v. Boston
Scientific Corp., 252 F.3d 1253, 1258 (11th Cir. 2001) (district court was within its discretion to
condition voluntary dismissal on an award of costs if Plaintiff should re-file her action)).
In its Objection, Defendant argues that the Magistrate Judge misapplied the legal
standard authorizing an award of litigation expenses to the defendant when a plaintiff seeks
voluntary dismissal of an action in order to re-file in another jurisdiction. Doc. 76. Although
Defendant concedes that Federal Rule of Civil Procedure 41(a)(2) affords the district court
“broad equitable discretion” to grant Plaintiff’s voluntary dismissal, it maintains that the 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. (citing
McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857 (11th Cir. 1986)). Defendant argues that
the Eleventh Circuit instructs that an imposition of attorney’s fees and costs against a plaintiff
under Rule 41(a)(2) is chiefly intended to protect a defendant from the unfairness of duplicative
litigation. Doc. 76, p. 4 (citing Versa Prods., Inc. v. Home Depot, USA, Inc., 387 F.3d 1325,
1328 (11th Cir. 2004); In Re Mirabilis Ventures, Inc., 2011 WL 1806513 (M.D. Fla. 2011)).

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Defendant reiterates its argument before the Magistrate Judge that Plaintiff’s delay in seeking a
voluntary dismissal of this action, after several months without a ruling on Plaintiff’s motion to
transfer, caused Defendant great prejudice. See Doc. 75, p. 3; Doc. 76, p. 5.
The Court agrees with the Magistrate Judge’s finding that Defendant has only been
prejudiced to a small degree by Plaintiff’s Motion to Dismiss Lawsuit. Doc. 75, p. 4. The cases
cited by Defendant are distinguishable. For example, in Young v. Roy’s Restaurant, the plaintiff
admitted to filing the case in state court, and upon defendants’ filing of a notice of removal,
amending her complaint solely to defeat federal question jurisdiction. 2006 WL 2598962, *3
(M.D. Fla. 2006). Subsequently, upon learning that her motion for remand was denied, plaintiff
filed a motion for voluntary dismissal in order to institute a new suit in state court.

Id.

Accordingly, the Young court concluded that kind of “jockeying of a case from state court, to
federal court, and then back to state court” drained judicial resources and warranted the court
ordering plaintiff pay defendant’s attorney’s fees. Id.1 In In re Mirabilis Ventures, the Court
granted plaintiff’s voluntary dismissal without prejudice on the condition that should plaintiff
choose to re-file claims against that particular defendant, plaintiff must pay the fees and costs
that defendant incurred in defending the dismissed action. 2011 WL 1806513, *1.
In contrast here, Defendant will not be severely prejudiced by granting Plaintiff’s Motion
to Dismiss Lawsuit. In its Objection, Defendant maintains that much of the work it has done in
this case will, contrary to the Magistrate Judge’s finding, not be useful in the Tennessee action.
Doc. 76, p. 7. For example, Defendant argues that its work opposing Plaintiff’s Motion to
Transfer has been wasted. Id. at 8. Although Defendant concedes that the substantive claims in

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Indeed, Magistrate Judge Baker correctly distinguished Young from the instant case, where
Defendant has not alleged the type of jockeying or manipulation present in Young. See Doc. 75,
pp. 5-6.
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the Tennessee and Florida actions are similar, it maintains that much of the work in this case will
not be useful in the Tennessee action. Id. Nevertheless, the Court agrees with the Magistrate
Judge, and the extensive case law, that awarding Defendant’s costs and fees is typically
appropriate where the defendant “has been put to considerable expense in preparing for trial.”
McCants, 781 F.3d at 860. That simply is not the case here. Moreover, Plaintiff has not engaged
in the type of jockeying that warrants the award of attorney’s fees in other instances. See Young,
2006 WL 2598962, *3; Versa, 387 F.3d 1325, 1328 (11th Cir. 2004) (plaintiff sought voluntary
dismissal after defendant had successfully moved to transfer to another state). Accordingly,
Defendant here is entitled to an award of taxable costs only.
Therefore, after careful consideration of the Report and Recommendation of the
Magistrate Judge, in conjunction with an independent examination of the court file, the Court is
of the opinion that the Magistrate Judge's Report and Recommendation should be adopted,
confirmed, and approved in all respects.
Accordingly, it is hereby ORDERED and ADJUDGED:
1.

The Report and Recommendation of the Magistrate Judge (Doc. 75) is adopted,
confirmed, and approved in all respects and is made a part of this order for all
purposes, including appellate review.

2.

Plaintiff John Coffey’s Motion for Voluntary Dismissal (Doc. 73) is GRANTED
in part:
a)

Plaintiff’s claims against Defendant in this action are dismissed.

b)

Plaintiff is ordered to pay an award of Defendant’s taxable costs pursuant
to 28 U.S.C. § 1920. Defendant is ordered to submit a bill of costs within
fourteen (14) days from the date of this Order.

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3.

Defendant’s Request for oral argument (Doc. 77) is DENIED.

4.

The Clerk is directed to terminate all pending motions and deadlines and close
this case.

DONE and ORDERED in Orlando, Florida on April 3, 2013.

Copies furnished to:
Counsel of Record
Unrepresented Parties
U.S. Magistrate Judge David A. Baker

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