Winsey v. Nationstar Mortgage LLC

Filing 47

ORDER: Defendant Nationstar Mortgage LLC's Motion for Voluntary Dismissal of its Counterclaim without Prejudice (Doc. # 44 ) is GRANTED. Nationstar's counterclaims (Doc. # 25 ) are DISMISSED WITHOUT PREJUDICE. As there are no remaining claims, the Clerk is directed to CLOSE this case. Signed by Judge Virginia M. Hernandez Covington on 7/26/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTINE WINSEY,
Plaintiff,
v.

Case No. 8:17-cv-979-T-33AEP

NATIONSTAR MORTGAGE LLC,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant Nationstar Mortgage LLC’s Motion for Voluntary
Dismissal of its Counterclaim without Prejudice (Doc. # 44),
filed on July 24, 2017. Pro se Plaintiff Christine Winsey
filed a response in opposition on July 25, 2017. (Doc. # 46).
For the reasons below, the Motion is granted, Nationstar’s
counterclaims are dismissed without prejudice, and, as there
are no remaining claims, the case is closed.
I.

Background
Winsey instituted this action on April 26, 2017, by

filing her Complaint. (Doc. # 1). Nationstar filed a motion
to

dismiss

the

Complaint

on

May

16,

2017,

and

its

counterclaims on May 23, 2017. (Doc. ## 17, 25). After
receiving Winsey’s response in opposition to the motion to

dismiss, the Court granted Nationstar’s motion to dismiss the
Complaint. (Doc. # 35). Specifically, the Court dismissed
Winsey’s FDCPA claim without prejudice and granted her leave
to amend that claim; the state-law claims were dismissed with
prejudice. (Id.).
The deadline for Winsey to file her amended complaint
was July 14, 2017. (Id.). Before that deadline passed, Winsey
filed

two

construed

motions

for

reconsideration

and

a

construed motion for recusal. (Doc. ## 36, 38, 39). The Court
denied both construed motions for reconsideration and the
construed motion for recusal. (Doc. ## 37, 40). Winsey failed
to file an amended complaint by the July 14, 2017, deadline.
Rather, on July 17, 2017, Winsey filed a “notice” that stated:
“[t]here is no need to file an amended complaint . . . .”
(Doc. # 42 at 2).
Because Winsey missed the deadline to file an amended
complaint — indeed, affirmatively elected not to do so — the
Court noted on July 17, 2017, that “at [that] juncture, this
action consist[ed] solely of Nationstar’s counterclaims.”
(Doc. # 43 at 2). The Court further noted that if Nationstar
no longer wished to maintain its counterclaims, the Court
would consider a Rule 41(a)(2) motion to dismiss. (Id. at 4).
Nationstar timely filed a motion under Rule 41(a)(2) seeking

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to have its counterclaims dismissed without prejudice. (Doc.
#

44).

Winsey’s

response

indicates

her

opposition

to

dismissal of the counterclaims without prejudice and she
argues that dismissal should be with prejudice. (Doc. # 46).
II.

Legal Standard
“Except as provided in Rule 41(a)(1), 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). “The purpose of Rule 41(a)(2) ‘is primarily to
prevent voluntary dismissals which unfairly affect the other
side, and to permit the imposition of curative conditions.’”
Arias v. Cameron,

776 F.3d 1262, 1268 (11th Cir. 2015)

(quoting McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856
(11th Cir. 1986)).
“A district court enjoys broad discretion in determining
whether to allow a voluntary dismissal under Rule 41(a)(2) .
. . .” Id. “Generally speaking, a motion for voluntary
dismissal should be granted unless the defendant will suffer
clear legal prejudice other than the mere prospect of a second
lawsuit.” Id. In determining whether a defendant will suffer
clear

legal

prejudice,

“‘the

Court

should

consider

such

factors as the defendant’s effort and expense of preparation
for trial, excessive delay and lack of diligence . . . in

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prosecuting the action, insufficient explanation for . . . a
dismissal, and whether a motion for summary judgment has been
filed by the defendant.’” Peterson v. Comenity Capital Bank,
No. 6:14-cv-614-Orl-41TBS, 2016 WL 3675457, at *1 (M.D. Fla.
May 3, 2016) (quoting Pezold Air Charters v. Phx. Corp., 192
F.R.D. 721, 728 (M.D. Fla. 2000)). Ultimately, “[t]he court’s
task is to ‘weigh the relevant equities and do justice between
the parties.’” Goodwin v. Reynolds, 757 F.3d 1216, 1219 (11th
Cir. 2014) (quoting McCants, 781 F.2d at 857).
Furthermore,
[i]t is no bar to a voluntary dismissal that the
plaintiff may obtain some tactical advantage over
the defendant in future litigation. Dismissal may
be inappropriate, however, if it would cause the
defendant to lose a substantial right. Another
relevant consideration is whether the plaintiff’s
counsel has acted in bad faith.
Id. (internal citations and quotation marks omitted). The
default under Rule 41(a)(2) is that a dismissal thereunder is
without prejudice. Arias, 776 F.3d at 1268.
III. Analysis
Winsey

argues

that

“if

the

court

.

.

.

allow[s]

Nationstar to voluntarily dismiss WITHOUT prejudice[,] then
this

court

harassment

is
of

“[g]enerally

subjecting
the

worst

speaking,

a

Plaintiff
kind.”
motion

4 

to

(Doc.
for

#

potential
46

at

voluntary

future

2).

But,

dismissal

should be granted unless the defendant will suffer clear legal
prejudice other than the mere prospect of a second lawsuit.”
Arias, 776 F.3d at 1268 (emphasis added). Because the mere
prospect of a subsequent action alone is not prejudice enough,
Winsey’s argument is unpersuasive.
This
Winsey

action

points

conducted

on

to
the

is

only

no

three

extensive

months

old.

discovery

counterclaims.

Other

Furthermore,

that
factors

has

been

belying

Winsey’s argument of clear legal prejudice include the fact
that (1) there is no indication of delay on the part of
Nationstar, (2) a motion for summary judgment has not been
filed, and (3) trial has not been set yet. In short, this
action is still in its early stages and Winsey will not suffer
clear legal prejudice if the counterclaims are dismissed
without prejudice. See Borden v. Saxon Mortg. Servs., Inc.,
469 Fed. Appx. 752, 754-55 (11th Cir. 2012) (noting district
court

did

not

counterclaimant’s

abuse
Rule

its

41(a)(2)

discretion
motion

to

by

granting

dismiss

after

original claims had been disposed of because no extensive
discovery had occurred with respect to the counterclaim).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:

5 

(1)

Defendant Nationstar Mortgage LLC’s Motion for Voluntary
Dismissal of its Counterclaim without Prejudice (Doc. #
44) is GRANTED.

(2)

Nationstar’s counterclaims (Doc. # 25) are DISMISSED
WITHOUT PREJUDICE.

(3)

As there are no remaining claims, the Clerk is directed
to CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this

26th day of July, 2017.

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