HORN v. MACON et al

Filing 38

ORDER DENYING 35 Motion to Dismiss Complaint. Plaintiff has 14 days from the date of this order to respond to 28 MOTION for Summary Judgment. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 4/7/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DEEANN HORN,
Plaintiff,
v.
CITY OF MACON, et al.,
Defendants.

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CIVIL ACTION NO. 5:14-CV-364 (MTT)

ORDER
Plaintiff Deann Horn has moved to voluntarily dismiss her complaint without
prejudice pursuant to Fed. R. Civ. P. 41 because she has “discovered an additional
Defendant and cause of action for which the statute of limitations has not expired, and
intends to file in that matter” and thus seeks “[t]o avoid duplication of action.” (Doc. 35
at 1). Because the Defendants have filed their answer as well as a motion for summary
judgment and have not signed a stipulation of dismissal, this “action may be dismissed
at the [P]laintiff’s request only by court order, on terms that the [C]ourt considers
proper.” See Fed. R. Civ. P. 41(a)(2). “[T]he decision whether or not to grant such a
dismissal is within the sound discretion of the district court ….” Fisher v. Puerto Rico
Marine, Mgmt., Inc., 940 F.2d 1502, 1502-03 (11th Cir. 1991).
The Plaintiff moved for voluntary dismissal more than two weeks after the
Defendants moved for summary judgment. The Defendants object to the Plaintiff’s
motion, contending it can “be inferred that Plaintiff is attempting to avoid responding to
Defendants’ dispositive motion—and avoid the costs of obtaining the original deposition
transcripts,” and they emphasize the “considerable time and expense” in preparing their

motion for summary judgment, defending and taking depositions, and preparing written
discovery and discovery responses.” (Doc. 36 at 4). Given that the lawsuit has been
pending for 17 months, discovery has been extended twice to allow an additional 5
months, extensive discovery has been conducted and concluded, and a dispositive
motion has been filed, the Court finds that granting the Plaintiff’s motion would prejudice
the Defendants. See Fisher, 940 F.2d at 1503 (“[W]hen exercising its discretion in
considering a dismissal without prejudice, the court should keep in mind the interests of
the defendant, for Rule 41(a)(2) exists chiefly for protection of defendants.”).
Accordingly, the Plaintiff’s motion for voluntary dismissal is DENIED. (Doc. 35). The
Plaintiff has 14 days from the date of this order to respond to the Defendants’ motion for
summary judgment.
SO ORDERED, this 7th day of April, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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