GRANBERRY v. SETTLES et al

Filing 27

ORDER granting 18 Motion to Dismiss; denying as moot 5 Motion to Dismiss for Failure to State a Claim; denying as moot 9 Motion to Remand; and denying as moot 13 Motion to Dismiss Party. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/21/2015 (vac).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
KRISTEN GRANBERRY,

*

Plaintiff,

*

vs.

*
CASE NO. 4:15-CV-55 (CDL)

AMY SETTLES, EXAMONE WORLDWIDE, *
INC., A QUEST DIAGNOSTICS
COMPANY, and QUEST DIAGNOSTICS *
INCORPORATED,
*
Defendants.
O R D E R
Kristen Granberry claims that nurse Amy Settles injured her
while

taking

employer,
Diagnostic

a

blood

ExamOne
Company

sample.

Granberry

Worldwide

Inc.

(“Quest”)

for

sued

(“ExamOne”),
negligence

in

Settles,
and

A

state

her

Quest
court.

Defendants removed the action to this Court based on diversity
of citizenship although Granberry and Settles are both Georgia
residents.

Presently pending before the Court are four motions:

a motion to dismiss by Quest, a motion to remand by Granberry, a
motion

to

dismiss

by

Settles,

and

a

dismissal without prejudice by Granberry.
Granberry’s

motion

for

voluntary

(ECF No. 18) is granted.

motion

for

voluntary

As discussed below,

dismissal

without

prejudice

The Court denies as moot Quest’s

motion to dismiss (ECF No. 5), Granberry’s motion to remand (ECF
No. 9), and Settles’s motion to dismiss (ECF No. 13).

BACKGROUND
Kristen Granberry lives in Columbus, Georgia.
blood

sample

According

taken

to

the

and/or Quest.1

by

nurse

Amy

Complaint,

Settles

Settles

is

on

She had a

March

employed

28,
by

2013.

ExamOne

Granberry alleges that she experienced intense

pain during and after the blood draw and that her arm is now
permanently

injured.

Granberry

contends

that

Settles

negligently performed the blood draw and that her negligence
caused Granberry’s injuries.
Granberry filed a complaint naming Settles, ExamOne, and
Quest as defendants in the Superior Court of Muscogee County on
March

11,

2015—less

limitations

than

expired.

three

See

weeks

O.C.G.A.

before

the

§ 9-3-33

statute

(stating

of

that

actions for personal injuries are subject to a two-year statute
of limitations).
Shortly thereafter, Granberry served all Defendants except
for

Settles.

Granberry

could

not

immediately

because she did not know where Settles lived.

serve

Settles

See Compl. ¶ 9

ECF No. 1-2 (“The residence or location of Defendant Amy Settles
is unknown at this time but it is presumed and alleged that she
is a resident of Georgia.”).

When

1

Settles drew Granberry’s

Quest moved to dismiss the claims against it because it contends it
has no relationship with Settles and has been sued solely because it
is the parent company of ExamOne.
Granberry does not oppose the
motion and assures the Court that she will not recommence her claims
against Quest if the Court grants her motion to dismiss without
prejudice.

2

blood the only identifying information Settles gave was her name
and that she “traveled all over” for her job.
Aff.

¶ 13,

persons

ECF

named

No.

“Amy

twenty-five results.

23-1.

Paul R. Bennett

Granberry’s

Settles”

counsel

in

and

Georgia

searched

Alabama

and

for
got

Id. ¶ 14; Pl.’s Resp. to Def. Settles’s

Mot. to Dismiss Ex. B, ECF No. 23-3.

Her attorney avers that he

had no way of knowing which of the twenty-five individuals had
drawn Granberry’s blood.

Bennett Aff. ¶ 15.

To locate the

correct person, Granberry asked ExamOne for Amy Settles’s full
name and address in an interrogatory.
Before Granberry served Settles, ExamOne and Quest removed
the action pursuant to 28 U.S.C. § 1441(b) on April 14, 2015.
Defendants asserted that removal was proper based on diversity
jurisdiction under 28 U.S.C. § 1332.

Defendants contended that

there was total diversity of the parties because Granberry is
from Georgia and ExamOne and Quest are not.

They argued that

the Court should not consider Settles’s citizenship because she
had not been served as of the date of removal.
Granberry finally received Settles’s address and served her
at her home in Muscogee County, Georgia on April 21, 2015—a few
weeks after the statute of limitations expired.

Granberry then

filed a motion to remand arguing that removal was not proper
because both Granberry and Settles resided in Georgia when the
action was removed.

3

Later,

Settles

filed

a

motion

to

dismiss

Federal Rule of Civil Procedure 12(b)(6).
Granberry’s

claims

are

barred

by

the

pursuant

to

Settles contends that
applicable

statute

of

limitations because Granberry allegedly failed to timely perfect
service on Settles.

Granberry opposed the motion and argued

that she timely perfected service.

She also filed a motion for

voluntary dismissal without prejudice pursuant to Federal Rule
of Civil Procedure 41(a)(2).
DISCUSSION
Granberry seeks to dismiss this action without prejudice so
that she can refile her claim in state court and timely serve
Settles.

See O.C.G.A. § 9-2-61(a) (allowing a plaintiff that

files suit within the statute of limitations to dismiss the suit
and then recommence it,
process).

If

allowed

effectively defeat

restarting the clock for service of
to

refile

the

action,

Granberry

will

the statute-of-limitations defense made in

Settles’s motion to dismiss.
The Federal Rules of Civil Procedure provide that once a
defendant files an answer—as ExamOne has—a plaintiff can dismiss
the action without prejudice “only by court order, on terms that
the

court

considers

proper.”

Fed.

R.

Civ.

P.

41(a)(2).

“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.”

4

Arias v.

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

“Rule 41(a)(2)

exists chiefly for protection of defendants . . . .”

Id. at

1269 (quoting Fisher v. P.R. Marine Mgmt., Inc., 940 F.2d 1502,
1503 (11th Cir. 1991) (per curiam)). The Court “must consider
the crucial question of whether ‘the defendant [would] lose any
substantial

right

by

the

dismissal.’”

Id.

(alteration

in

original) (quoting Pontenberg v. Bos. Sci. Corp., 252 F.3d 1253,
1255 (11th Cir. 2001) (per curiam)).

Ultimately, “the district

court must exercise its broad equitable discretion under Rule
41(a)(2) to weigh the relevant equities and do justice between
the parties in each case . . . .”

McCants v. Ford Motor Co.,

781 F.2d 855, 857 (11th Cir. 1986).
Defendants
dismiss

would

contend
prejudice

that
them

granting
because

statute-of-limitations defense.2

Granberry’s
Settles

will

motion
lose

to
her

The law in the Eleventh Circuit

is that “the loss of a statute-of-limitations defense alone does
not amount to per se prejudice requiring denial of a [motion
for] voluntary dismissal without prejudice.”

Arias, 776 F.3d at

1272; see also McCants, 781 F.2d at 858 (“[T]he likelihood that
a dismissal without prejudice will deny the defendant a statute

2

Defendants appear to argue that they would be prejudiced by
the expense of litigating the case for a second time. But the
expense and inconvenience of re-litigating a dispute does not
constitute legal prejudice that bars granting a plaintiff’s
motion for voluntary dismissal without prejudice. See Arias, 776
F.3d at 1268.
5

of limitations defense does not constitute plain legal prejudice
and hence should not alone preclude such a dismissal.”).

“[I]t

is no bar to a voluntary dismissal that the plaintiff may obtain
some

tactical

litigation.”
are

not

advantage

over

the

defendant

McCants, 781 F.2d at 857.

clearly

prejudiced

by

the

in

future

Therefore, Defendants

loss

of

the

statute-of-

Settles’s

statute-of-

limitations defense.
Moreover,

the

Court

notes

that

limitations defense is not sure to succeed.

“If the defense

lack[s] merit, Defendants [will] not even arguably suffer any
cognizable prejudice as a result of the voluntary dismissal.”
Arias, 776 F.3d at 1269.
her too late.

Settles contends that Granberry served

In Georgia, a plaintiff must serve a defendant

before the statute of limitations expires or within a five-day
grace period after the expiration of the statute of limitations.
See O.C.G.A. § 9-11-4(c); Giles v. State Farm Mut. Ins. Co., 330
Ga. App. 314, 317-18, 765 S.E.2d 413, 417 (2014)).

If she does

not, “the service relates back to the original filing only if
the

plaintiff

shows

that

[s]he

acted

in

a

reasonable

and

diligent manner in attempting to insure that a proper service
was made as quickly as possible.”

Giles, 330 Ga. App. at 320,

765 S.E.2d at 418 (quoting Parker v. Shreve, 244 Ga. App. 350,
351, 535 S.E.2d 332, 334 (2000)).

6

Here, Granberry served Settles well after the statute of
limitations and grace period expired.

But Granberry has at

least a plausible argument that she acted “in a reasonable and
diligent manner” to serve Settles “as quickly as possible,” such
that

service

should

be

considered

timely

perfected.

Id.

Granberry asserts that the only identifying information she had
about the nurse that drew her blood was her name: Amy Settles.
A search for persons named “Amy Settles” in Georgia and Alabama
yielded twenty-five results.
which one drew her blood.

Granberry had no way of knowing
Granberry contends that she acted

reasonably and diligently when she requested Amy Settles’s full
name and address from her employer, ExamOne, through discovery.
Settles

responds

that

Granberry

should

have

found

her

address sooner because her address is publicly available in the
Muscogee County property tax records and the Columbus, Georgia
telephone books.

But Granberry contends that she could not have

known to look in those places because she had no clue that
Settles lives in Columbus.
on

her

In sum, while Settles could succeed

statute-of-limitations

guaranteed.

defense,

dismissal

is

not

Thus, the Court finds that Settles is not clearly

prejudiced by the loss of her statute-of-limitations defense.
In addition to ensuring that Defendants will not suffer
clear legal prejudice, the Court must consider the particular
facts of the case, “weigh the relevant equities and do justice

7

between the parties.”

McCants, 781 F.2d at 857.

Based on the

record, the Court concludes that the relevant equities weigh in
favor

of

granting

Granberry’s

motion

to

dismiss

without

prejudice.
The

Court

bases

this

conclusion

on

several

findings.

First, the record contains no indication that Granberry or her
attorneys acted in bad faith.
(instructing

district

See Arias, 776 F.3d at 1272

courts,

when

analyzing

a

Rule

41(a)(2)

motion, to consider whether the plaintiff acted in bad faith).
Second, Granberry made efforts to locate Settles and serve her
in a timely manner.

Within approximately six weeks of filing

her complaint, Granberry had located and served Settles.
Granberry

moved

for

voluntary

dismissal

just

ten

Third,

days

after

Settles filed a motion to dismiss contending that the claims
against her were time-barred.
between

learning

of

the

The lack of any substantial delay

statute-of-limitations

defense

and

moving for dismissal mitigates in favor of granting Granberry’s
motion to dismiss.

See Fisher, 940 F.2d at 1503 (affirming a

district court’s denial of a voluntary motion to dismiss when a
plaintiff waited over a month after learning of facts that would
lead to dismissal to make a Rule 41(a)(2) motion).

Fourth,

Granberry brings her motion to dismiss in the relatively early
stages

of

litigation

before

the

parties

have

expended

substantial resources on discovery or trial preparation.

8

See

id. (affirming a district court’s decision to deny a motion for
voluntary dismissal when the defendant had spent considerable
time and expense on discovery and trial preparation).

Fifth,

Granberry assures the Court that she will not sue Quest if given
the opportunity to refile her claims.

Quest therefore will not

be prejudiced.
Finally, it is not clear that this case should be in this
Court at all.

It appears clear that complete diversity does not

exist, as both Granberry and Settles reside in Georgia.

The

action was removed only because Settles had not yet been served.
But

at

the

time

of

removal,

Defendants

knew

that

Granberry

contended that Settles resided in Georgia, the same state as
Granberry.
Defendants

By removing the
not

only

sought

case before Settles was served,
to

test

the

limits

of

diversity

jurisdiction but did so, at least in part, in order to deprive
Granberry of the opportunity to reinstitute her lawsuit under
Georgia law in a timely manner—a right she would have been able
to exercise had there been no removal.

Although the Court does

not criticize Defendants for such procedural maneuvering, the
Court

finds

Defendants for

that

the

equities

do

their skillful tactics.

not

justify

rewarding

Weighing all of the

equities, the Court concludes that Granberry’s motion to dismiss
without prejudice should be granted.

9

The Court rejects Defendants’ request to be compensated for
their

legal

fees

if

the

Court

allows

the

dismissal.

As

explained above, Defendants removed this dispute to this Court
knowing that a legitimate dispute existed as to whether complete
diversity existed among the parties.

Even assuming that removal

was theoretically proper, if this action remained in federal
court, Granberry would be forced to litigate in a forum she did
not choose simply because she could not locate one Defendant
before

the

other

Defendants

filed

their

notice

of

removal.

Moreover, some of Granberry’s claims may not be heard on the
merits at all.

If the case had remained in the forum that

Granberry chose, however, she would have the opportunity to have
her Georgia law claim against a fellow Georgia resident heard on
the

merits

by

a

Georgia

court.

The

Court

finds

that

the

equities weigh in favor of allowing Granberry to dismiss her
complaint, refile it in state court, and serve Settles and any
remaining Defendants in a timely manner.

The Court will not

require her to pay a penalty for doing so.
CONCLUSION
In sum, the Court grants Granberry’s motion for voluntary
dismissal without prejudice (ECF No. 18).

The Court denies as

moot Quest’s motion to dismiss (ECF No. 5), Granberry’s motion
to remand (ECF No. 9), and Settles’s motion to dismiss (ECF No.
13).

10

IT IS SO ORDERED, this 21st day of September, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

11