King v Spirit Airlines, Inc.
ORDER granting 16 Motion for Summary Judgment; denying as moot 22 Motion to Dismiss. Signed by Judge James I. Cohn on 6/8/2011. (awe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-60334-CIV-COHN/SELTZER
ROBERT KING and
FAVIOLA L. GARCIA,
SPIRIT AIRLINES, INC.,
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND
DENYING MOTION FOR VOLUNTARY DISMISSAL
THIS CAUSE is before the Court on Defendant Spirit Airlines, Inc.’s Motion for
Summary Judgment [DE 16] (“Motion for Summary Judgment”) and Plaintiffs Robert
King and Faviola L. Garcia’s Partially Opposed Motion for Voluntary Dismissal With
Prejudice [DE 22] (“Motion for Voluntary Dismissal”). The Court has considered the
Motion for Summary Judgment and Defendant’s related submissions, the Motion for
Voluntary Dismissal, Defendant’s Response to Plaintiffs’ Motion for Voluntary Dismissal
[DE 24] (“Response”), and the record in this case, and is otherwise advised in the
The Court notes that Plaintiffs did not file a Response in opposition to the
Motion for Summary Judgment or a Reply in support of their Motion for Voluntary
Dismissal, and the time for filing such documents has passed.
On February 15, 2011, Plaintiffs Robert King and Faviola Garcia brought this
action for violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.
[DE 1]. On April 25, 2011, Defendant Spirit Airlines, Inc. filed its Motion for Summary
Judgment. When Plaintiffs failed to respond to the Motion for Summary Judgment and
the deadline for responding had passed, the Court entered an Order to Show Cause
[DE 19] directing Plaintiffs to show cause on or before May 17, 2011 why the Motion for
Summary Judgment should not be granted. The Court warned, “Failure to do so may
result in the motion being granted by default.” Order to Show Cause at 1. Plaintiffs
failed to respond by the May 17th deadline. Rather, on May 18, 2011, after the
response deadline had passed, they moved for a two-day extension of time to respond
to the Order to Show Cause [DE 20]. The Court granted the request in a Paperless
Order [DE 21] allowing Plaintiffs to respond to the Order to Show Cause by no later
than May 19, 2011. Once again, Plaintiffs failed to respond.
On May 20, 2011, the day after the May 19th deadline had passed, Plaintiffs filed
their Motion for Voluntary Dismissal. In their motion, Plaintiffs represent, “Counsel for
Plaintiffs and Defendant have agreed that the pending FLSA claims may be dismissed
with prejudice. However, Plaintiffs wish to make clear that this dismissal with prejudice
only operates with prejudice as to claims made under the FLSA: the point of this
dismissal would be that Plaintiffs still have the ability to pursue wage claims predicated
on a theory of recovery outside the FLSA.” Mot. for Vol. Dismissal ¶ 5. Plaintiffs note
that Defendant “objects to any limitations being placed on the ‘with prejudice’ aspect of
the dismissal, presumably because Defendant wishes to later assert that any claims
arising out of the same nucleus of operative facts have been dismissed with prejudice.”
Id. ¶ 6. In its Response, Defendant requests that the Court grant the Motion for
Summary Judgment and deny the Motion for Voluntary Dismissal as moot. Resp. at 1.
II. MOTION FOR SUMMARY JUDGMENT
Defendant’s Motion for Summary Judgment requests summary judgment in
Defendant’s favor, including attorney’s fees and costs, based on Plaintiffs’ inability to
state a claim under the FLSA. See Mot. for Summary Jgmt. at 3, 6. Despite multiple
opportunities to respond to Defendant’s Motion for Summary Judgment, and despite the
warning that failure to respond to the Order to Show Cause could result in the motion
being granted by default, Plaintiffs never responded. See supra. Even in their Motion
for Voluntary Dismissal, Plaintiffs do not contest Defendant’s arguments for summary
judgment, but rather state that they, “are willing to concede that their claims may be
more appropriately pursued as state law claims for unpaid wages.” Mot. for Vol.
Dismissal at 2 ¶ 4. Accordingly, in light of the fact that there is no dispute as to the
merits of the Motion for Summary Judgment, and the fact that Plaintiffs have not filed a
Response and the time for doing so has passed, the Court will grant the Motion for
Summary Judgment by default.
III. MOTION FOR VOLUNTARY DISMISSAL
Plaintiffs’ Motion for Voluntary Dismissal requests an order dismissing their case
with prejudice, but with the prejudice operating only as to the FLSA claims so that
Plaintiffs may pursue wage claims predicated on a theory of recovery outside the FLSA.
Mot. for Vol. Dismissal ¶ 5. In light of the fact that the Court’s ruling on the Motion for
Summary Judgment disposes of this entire case, Plaintiffs’ Motion for Voluntary
Dismissal is moot. However, even if the Motion for Voluntary Dismissal were not moot,
it would still merit denial for the reasons set forth below.
Federal Rule of Civil Procedure 41(a) sets forth the rules for voluntary dismissal.
See Fed. R. Civ. P. 41(a). The rule provides, 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). Otherwise, “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). Here, Plaintiffs cannot dismiss this case
unilaterally because Defendant already filed both an Answer [DE 11] and a Motion for
Summary Judgment, and Plaintiffs did not submit a stipulation signed by all parties who
have appeared. See Fed. R. Civ. P. 41(a)(1)(A). Therefore, any dismissal must be by
court order. See Fed. R. Civ. P. 41(a)(2).
Normally, a court should allow voluntary dismissal under Rule 41(a)(2) unless the
defendant will suffer some “plain prejudice other than the mere prospect of a second
lawsuit.” Fisher v. Puerto Rico Marine Mgmt., Inc., 940 F.2d 1502, 1502-03 (11th Cir.
1991). However, a district court has broad discretion when determining whether to
permit voluntary dismissal. See id. at 1503. “[W]hen exercising its discretion . . . , the
court should keep in mind the interests of the defendant, for Rule 41(a)(2) exists chiefly
for protection of defendants.” Id. “To determine whether a defendant will suffer plain
legal prejudice, the Court should consider such factors as: (1) the defendant’s effort and
expense of preparation for trial; (2) excessive delay and lack of diligence on the
plaintiff’s part; (3) whether the defendant has filed a motion for summary judgment; and
(4) the plaintiff’s insufficient explanation for the need for dismissal. Penzold Air
Charters v. Phoenix Corp., 192 F.R.D. 721, 728 (M.D. Fla. 2000) (citing Grover v. Eli
Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994)).
As applied to this case, these factors indicate that dismissal would prejudice
Defendant. First, Defendant has already expended time and money litigating this case.
Defendant has been defending this action since February, and trial is set to begin in just
two months. See Pezold, 192 F.R.D. at 728 (finding prejudice when trial was less than
four months away). Second, not only have Plaintiffs caused delay in failing to respond
to the Motion for Summary Judgment on multiple occasions, see supra, but also they
have not been diligent in pursuing the claims they now wish to assert in state court.
Plaintiffs had the opportunity to amend their Complaint to assert additional causes of
action by March 17, 2011 pursuant to the Court’s Scheduling Order [DE 4]. Though
Plaintiffs filed one Amended Complaint [DE 6] on February 28, 2011, there was still
time to request additional amendments after that date and before the March 17th
deadline, but Plaintiffs did not request permission to file a Second Amended Complaint.
Further, Plaintiffs could have sought dismissal under Rule 41(a)(2) after Defendant filed
its Answer on March 16, 2011 or its Response to the Statement of Claim [DE 15] on
March 23, 2011, but Plaintiffs did not seek dismissal despite the fact that both of
Defendant’s filings recognized Plaintiffs’ inability to state a claim under the FLSA.
Third, Defendant filed a Motion for Summary Judgment, which was pending for almost
one month before Plaintiffs filed their Motion for Voluntary Dismissal.
Fourth, and perhaps most importantly, Plaintiffs offer an insufficient explanation
for their need for dismissal. Plaintiffs seek dismissal of this case in order to pursue
alternative legal theories in a state court action. See Mot. for Vol. Dismissal at 2 ¶¶ 4-5.
Here, as in SFM Holdings, Ltd. v. Fisher, No. 08-81177-CIV, 2009 WL 2425760 (S.D.
Fla. Aug. 6, 2009), where the court rejected dismissal and instead ruled on a pending
motion for summary judgment, Plaintiffs desire to dismiss the case only to restart the
litigation process in state court. See SFM Holdings, 2009 WL 2425760, at *4; see also
Mot. for Vol. Dismissal at 2 ¶¶ 4, 5. Similar to McBride v. Piedmont Eng’rs of the
Carolinas, P.C., 189 Fed. App’x 876 (11th Cir. 2006), where the district court was within
its discretion when denying a motion to dismiss because the “motion to dismiss—filed
while Defendants’s summary judgment motions were pending—was solely motivated to
avoid an expected adverse ruling on Defendants’ summary judgment motions,” id. at
878 (citations and quotations omitted), Plaintiffs in this case essentially concede that
they cannot survive Defendant’s Motion for Summary Judgment, see Mot. for Vol.
Dismissal at 2 ¶ 4. The Court will not allow Plaintiffs to avoid an adverse summary
judgment ruling at this stage simply by requesting voluntary dismissal.
Therefore, in light of Defendant’s effort and expense defending itself and
preparing for trial, Plaintiffs’ delay and lack of diligence in litigating this case,
Defendant’s pending Motion for Summary Judgment, and Plaintiffs’ insufficient
explanation of its need for dismissal, the Court finds that dismissal of this action at this
stage would impose plain legal prejudice on Defendant. See Penzold, 192 F.R.D. at
728. Therefore, even if the Motion for Voluntary Dismissal were not moot, it would still
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED as follows:
Defendant’s Motion for Summary Judgment [DE 16] is GRANTED;
Plaintiffs’ Partially Opposed Motion for Voluntary Dismissal With Prejudice
[DE 22] is DENIED;
The Court will enter a separate final judgment order consistent with the
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 8th day of June, 2011.
Copies provided to:
Counsel of record via CM/ECF
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