SINENI III v. ESTABROOK et al

Filing 74

ORDER granting 69 Plaintiff's Motion for Voluntary Dismissal and dismissing Plaintiff's Complaint with prejudice and with costs awarded to Defendants; dismissing as moot 60 Defendants' Motion for Summary Judgment; dismissing as moot 60 Defendants' Motion for Judgment on the Pleadings; dismissing as moot 68 Plaintiff's Motion to Extend Time. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ANTHONY J. SINENI III,
Plaintiff,
v.
JAMES ESTABROOK, et al.,
Defendants.

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2:15-cv-00368-JAW

ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE
Upon motion by the Plaintiff, the Court dismisses his Complaint with
prejudice. The Court assesses costs against the Plaintiff but rejects the Defendants’
request for an award of attorney’s fees.
I.

BACKGROUND
On September 9, 2015, Anthony J. Sineni III filed a complaint against three

named and some unknown law enforcement officers with the Cumberland County
Sheriff’s Office, alleging that they had surreptitiously intercepted his telephone
communications without his consent in violation of federal constitutional and
statutory law. Compl. and Demand for Jury Trial (ECF No. 1). After the discovery
period ended, on July 14, 2016, the Defendants filed notice of their intention to file a
motion for summary judgment. Defs. Estabrook, Ackerman and Cook’s Notice of
Intent to File Mot. for Summ. J. (ECF No. 37). After an issue regarding the deposition
of a witness was resolved, the Court held a Local Rule 56(h) conference on August 26,
2016. Minute Entry (ECF No. 52). At the prefiling conference, the Defendants agreed

to file a motion for summary judgment by September 30, 2016; the Plaintiff agreed to
respond by October 21, 2016; and the Defendants agreed to reply by November 4,
2016. Tr. of Proceedings, Rule 56(h) Conf. 17:18–18:12 (ECF No. 54).
On September 27, 2016, the Defendants filed a motion for summary judgment
and a motion for judgment on the pleadings. Defs.’ Mot. for Summ. J. (F.R. Civ. P.
56) and J. on the Pleadings (F.R. Civ. P. 12(c)) (ECF No. 60) (Defs.’ Mots.). The
Plaintiff did not directly respond to the motions.
On October 21, 2016, the Plaintiff filed a stipulation of voluntary dismissal.
See Notice of Voluntary Dismissal of Action (ECF No. 63). However, the stipulation
did not comply with Federal Rule of Civil Procedure 41(a)(1)(A) because the
Defendants had entered their appearance and the stipulation was not signed by all
the parties. The Clerk’s Office so informed the Plaintiff, and the docket now lists the
stipulation as having been filed in error.
Given the uncertain state of the docket, on November 18, 2016, the Court held
a telephone conference with counsel, and the Court ordered the Plaintiff to file a
motion to extend the time to file objections to the motion for summary judgment by
November 25, 2016. Minute Entry (ECF No. 67). On November 22, 2016, the Plaintiff
filed both a motion to extend time and a motion to dismiss. Pl. Sineni’s Mot. to Extend
Time to File Obj. to Defs.’ Mot. for Summ. J. (ECF No. 68) (Pl.’s Mot. to Extend); Pl.’s
Mot. for Voluntary Dismissal (ECF No. 69) (Pl.’s Mot.). In the motion to extend, the
Plaintiff requested an extension of time to respond to the motion for summary
judgment until settlement negotiations were resolved. Pl.’s Mot. to Extend at 1. In

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the motion for voluntary dismissal, the Plaintiff urged the Court to dismiss his
pending action with prejudice.

Pl.’s Mot. at 1–3.

On November 29, 2016, the

Defendants responded to both motions. Obj. to Pl.’s Mot. to Extend Time to File Obj.
to Defs.’ Mot. for Summ. J. (ECF No. 70); Defs.’ Obj. to Pl.’s Voluntary Dismissal (ECF
No. 71) (Defs.’ Opp’n).
responses.

The Plaintiff did not reply to either of the Defendants’

On December 19, 2016, the Court held a telephone conference with

counsel to clarify whether the Plaintiff was moving for dismissal with or without
prejudice; the Plaintiff confirmed that he is moving to dismiss his Complaint with
prejudice.
II.

DISCUSSION
A.

Unraveling the Procedural Tangle

The procedural status of the motions before the Court is a bit tangled. To
clarify, the following motions are pending: (1) a Defendants’ motion for summary
judgment; (2) a Plaintiff’s motion to extend time; and (3) a Plaintiff’s motion for
voluntary dismissal. The Plaintiff has not responded to the Defendants’ motion for
summary judgment, but he has moved to extend the time to respond to the motion
for summary judgment until after settlement discussions are resolved. The third
pending motion focuses on three issues: (1) whether the Court should reject the
Plaintiff’s motion to dismiss and proceed with the pending motion for summary
judgment; (2) whether, if the Court dismisses the Complaint with prejudice, the Court
should award costs to the Defendants; and (3) whether the Court should award
attorney’s fees.

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B.

The Motion to Dismiss With Prejudice

The Plaintiff’s motion to dismiss with prejudice explains that he brought this
lawsuit on the good faith belief that Winona Hichborn had told other people that she
had neither consented to the recording of her phone conversations with Mr. Sineni
nor had recorded them herself. Pl.’s Mot. at 1. However, during Ms. Hichborn’s
deposition, Mr. Sineni learned that Ms. Hichborn had voluntarily recorded the
telephone conversations. Id. at 1–2. Accordingly, Mr. Sineni moved to dismiss the
complaint. Id. at 2.
The Defendants take alternative positions. Defs.’ Opp’n at 1–5. They object
to the motion to dismiss and urge the Court to rule on the pending motion for
summary judgment, but if the Court grants the motion to dismiss, they ask the Court
to order the Plaintiff to pay attorney’s fees and costs. Id. at 1. The Defendants are
particularly annoyed that the Plaintiff forced them to prepare and file a dispositive
motion, when he already knew that Ms. Hichborn testified that she had recorded the
conversations. Id. at 1–2. The Defendants argue that the Court should consider the
damage to the law enforcement officers’ reputations from this lawsuit. Id. at 3. They
are concerned that Mr. Sineni will dismiss this claim, only to bring new ones in this
or in state court. Id. at 4. In fact, they claim that he has already filed one such claim.
Id. at 2, n.2 (citing Sineni v. Cumberland Cty. Sheriff’s Office, No. 2:16-cv-000520JAW). Furthermore, they maintain that if the Court elects to dismiss the pending
action, it should do so conditioned upon taxation and actual payment of allowable
costs and attorney’s fees from the date of the Rule 56(h) conference onward. Id. at 4.

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1.

Analysis

As Mr. Sineni filed the motion after the Defendants’ answer and without a
stipulation of the parties, Rule 41(a)(2) applies:
“(2) By Court Order; Effect. 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…Unless the order states
otherwise, a dismissal under this paragraph (2) is without prejudice.”
FED. R. CIV. P. 41(a)(2). “Where, as here, a defendant has answered the complaint or
moved for summary judgment, a plaintiff cannot unilaterally dismiss an action
without court approval ‘on terms that the court considers proper.’” JRA Architects &
Project Managers, P.S.C., v. First Financial Group, Inc., 375 F. App’x 42, 42 (1st Cir.
2010) (quoting FED. R. CIV. P. 41(a)(2)); see also Doe v. Urohealth Sys. Inc., 216 F.3d
157, 160 (1st Cir. 2000); Alamance Indus., Inc., v. Filene’s, 291 F.2d 142, 146 (1st Cir.
1961); Canadian Nat’l Ry. Co. v. Montreal, Me. & Atl. Ry., 275 F.R.D. 38, 41 (D. Me.
2011); Ring v. ZF Lemforder Corp., No. CV-09-83-B-W, 2009 U.S. Dist. LEXIS 53909,
at *2 (D. Me. June 24, 2009); Holbrook v. Andersen Corp., 130 F.R.D. 516, 519 (D. Me.
1990). The First Circuit has stated that “[t]he basic purpose of Rule 41(a)(2) is to
freely permit the plaintiff, with court approval, to voluntarily dismiss an action so
long as no other party will be prejudiced.” Puerto Rico Maritime Shipping Auth. v.
Leith, 668 F.2d 46, 50 (1st Cir. 1981) (quoting LeCompte v. Mr. Chip, Inc., 528 F.2d
601, 604 (5th Cir. 1976)); Cabrera-Velazquez v. Puerto Rico Tele. Co., No. 10-1523(JP),
2011 U.S. Dist. LEXIS 50556, at *9 (D.P.R. May 10, 2011).
In deciding whether to allow a voluntary dismissal, courts generally consider
a number of factors: 1) the defendant’s effort and expense of preparation for trial; 2)
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excessive delay and lack of diligence on the part of the plaintiff in prosecuting the
action; 3) insufficient explanation for the need to take a dismissal; 4) the fact that a
motion is made at a critical juncture in the ongoing processing of the case; and, 5)
whether a dispositive motion has been filed. Doe, 216 F.3d at 160; ZF Lemforder
Corp., 2009 U.S. Dist. LEXIS 53909, at *3; Holbrook, 130 F.R.D. at 519. “[I]n ruling
on a motion for voluntary dismissal, ‘[t]he district court is responsible…for exercising
its discretion to ensure that…prejudice will not occur.’” JRA Architects, 375 F. App’x.
at 43 (quoting Doe, 216 F.3d at 160). Finally, the First Circuit has clarified that the
district courts “need not analyze each factor or limit their consideration to these
factors.” Doe, 216 F.3d at 160.
2.

A Dismissal With Prejudice and a Ruling on the Merits of
the Pending Motion for Summary Judgment

The Court rejects the Defendants’ demand that it consider and rule on their
pending motion for summary judgment. To spend the time and effort to rule on a
case the plaintiff wants to dismiss with prejudice would be an exercise in futility. It
is true, as the Defendants noted, that the First Circuit listed as one factor in a trial
court’s ruling on a motion to dismiss whether there are motions for summary
judgment pending. Doe, 216 F.3d at 161. But the issue in Doe was whether the
dismissal should have been with or without prejudice. Id. at 160–61. The Doe Court
concluded that a trial court should consider whether a motion for summary judgment
was pending at the time of a motion to dismiss without prejudice presumably because
the responding party may have assessed the strength of the dispositive motion and
filed the motion to dismiss in order to avoid an inevitable judicial ruling that would
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have the effect of a dismissal with prejudice. Here, however, Mr. Sineni is seeking a
dismissal with, not without, prejudice.
The Defendants have not adequately explained why they prefer a ruling in
their favor on the merits of the pending motion for summary judgment over a
dismissal in their favor with prejudice. At least as regards Mr. Sineni, the effect
would be the same; both would result in a judgment that would bar a second lawsuit
on the same basis. United States v. Cunan, 156 F.3d 110, 114 (1st Cir. 1998) (“[A]
voluntary dismissal with prejudice is ordinarily deemed a final judgment that
satisfies res judicata criterion”); 9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 2367 (3d ed. 2008) (“A dismissal with prejudice,
unless the court has made some other provision, is subject to the usual rules of res
judiciata and is effective not only on the immediate parties to the action but also on
their privies”). Here, the Defendants are worried about the prospect of new litigation
by the “immediate party,” namely Mr. Sineni. But with the dismissal with prejudice
having a res judicata effect on Mr. Sineni’s bringing a new lawsuit on the same set of
facts, the Court declines to issue a superfluous ruling on the pending motion for
summary judgment.
3.

Costs of Court

The Defendants have a better case for an order awarding them costs. Federal
Rule of Civil Procedure 54(d)(1) provides that costs “should be allowed to the
prevailing party.” FED. R. CIV. P. 54(d)(1). Mr. Sineni has not pointed to a “federal
statute,…rule[], or…court order” that would provide otherwise. Id. In the First

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Circuit’s words, Rule 54(d)(1) “creates a presumption favoring recovery of costs by
prevailing parties.” Ira Green Inc. v. Military Sales & Serv. Co., 775 F.3d 12, 28 (1st
Cir. 2014).

In this case, there is no basis to conclude anything but that the

Defendants are the prevailing parties within the meaning of Rule 54(d)(1) and
therefore the Court will order costs to the Defendants.
4.

Attorney’s Fees

“Under the American Rule, ‘the prevailing litigant is ordinarily not entitled to
collect a reasonable attorneys’ fee from the loser.’” Travelers Cas. & Sur. Co. of Am.
v. Pac. Gas & Elec. Co, 549 U.S. 443, 448 (2007) (quoting Alyeska Pipeline Serv. Co.
v. Wilderness Soc., 421 U.S. 240, 247 (1975)). “The default rule can, of course, be
overcome by statute…[or] by enforceable contract[.]” Id. (citations omitted). The
Defendants have not cited either a statute or contract that would entitle them to an
award of attorney’s fees. Assuming that Doe might allow a trial court to condition a
dismissal on the payment of attorney’s fees to the prevailing party even in the absence
of an authorizing statute or contract, this is not the right case. Doe, 216 F.3d at 163
(“[I]f there were other valid justifications for dismissal, payment of attorney’s fees and
other expenses might in some measure ameliorate the prejudice to the defendants of
the plaintiff’s abortive federal court litigation”).
Here, Mr. Sineni presented a plausible explanation for why he initiated suit
and why, after discovery, he is moving to dismiss it, namely, that, contrary to his
understanding when he filed suit, a central witness confirmed under oath that she
had voluntarily recorded the telephone conversations. Ordinarily, a suit filed in good

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faith under the misimpression that a certain set of facts exists that justify the lawsuit
would not cause the imposition of an award of attorney’s fees if the plaintiff promptly
moved to dismiss the complaint upon learning the truth. Here, the Defendants’ main
annoyance is that Mr. Sineni forced them to prepare and file a motion for summary
judgment and only then did he move to dismiss the Complaint, costing the
Defendants additional time and expense in the defense of the lawsuit.
The Court does not view the Defendants’ irritation to be sufficient grounds to
award them attorney’s fees. The critical witness, Winona Hichborn, was deposed on
August 23, 2016, and Mr. Sineni was not present. See Dep. of Winona Hichborn (Aug.
23, 2016) (ECF No. 59) (Hichborn Dep.). By August 26, 2016, the date of the Rule
56(h) conference, the transcript of the Hichborn deposition had not yet been
transcribed. Tr. of Proceedings, Local Rule 56(h) Conf. 2:19–3:6 (ECF No. 54). Mr.
Sineni questioned whether Ms. Hichborn had been encouraged by law enforcement
to make the recordings and therefore whether they had improperly influenced her
decision to record the conversations. Id. 4:24–5:13.
The Defendants filed their motion for summary judgment and motion for
judgment on the pleadings on September 27, 2016, together with a copy of the
Hichborn deposition transcript. Defs.’ Mots. Having reviewed the motions and their
factual underpinnings, Mr. Sineni attempted to dismiss the case as early as October
21, 2016. See Notice of Voluntary Dismissal of Action (ECF No. 63). Arguably, Mr.
Sineni should have acted sooner. He should been able to read the Hichborn transcript
between September 12, 2016, when the Hichborn transcript was first prepared, and

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September 27, 2016, when the Defendants filed their dispositive motions, and he
should have been able to conclude that the factual premise of his lawsuit was
erroneous.
But Ms. Hichborn did not waive reading and signing the deposition, and she
had thirty days from the date the transcript was first prepared to make any
corrections. See Hichborn Dep. 99:22; 101:5—18; FED. R. CIV. P. 26(e)(1). From the
record, the Court gleans that the court reporter prepared the transcript on September
12, 2016, and sent the draft to Ms. Hichborn for her review and signature on that
date.1 Mr. Sineni was entitled to await the final version of the transcript before
dismissing his lawsuit and that date was October 12, 2016 at the earliest. By that
time, the Defendants had already filed their dispositive motions. In any event, the
Defendants should take solace that Mr. Sineni read their well-prepared motions and
was so convinced by their arguments that he attempted to dismiss his case.
Nor is the Court convinced by the Defendants’ fear that Mr. Sineni will file
another lawsuit on these same facts and attempt to re-litigate what has been
dismissed. The Defendants claim that Mr. Sineni has already filed a lawsuit based
in part on the same facts that underlie this lawsuit. Defs.’ Opp’n at 2, 2 n.2. The
Court briefly reviewed the complaint in the newly-filed case that the Defendants
reference, Sineni v. Cumberland Cty. Sheriff’s Office, No. 2:16-cv-000520-JAW, and

When she completed the deposition transcript, the court reporter attached a letter to Ms.
Hichborn through counsel dated August 12, 2016. Hichborn Dep. 101:5. The Court assumes that this
is a typographical error because the deposition took place on August 23, 2016. The court reporter
completed the transcript on September 12, 2016. Id. 100:16–17. The Court assumes the court reporter
sent the letter to Ms. Hichborn on September, not August, 12, 2016.
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none of the factual allegations in that case touches on the facts in this one. Moreover,
if Mr. Sineni elected to file another lawsuit against the same Defendants based on
the same set of facts that are the subject of this lawsuit, his new lawsuit would plainly
be barred by the principle of res judicata.
III.

CONCLUSION
The Court GRANTS the Plaintiff’s Motion for Voluntary Dismissal (ECF No.

69) and DISMISSES the Plaintiff’s Complaint WITH PREJUDICE and with costs
awarded to the Defendants.

The Court DENIES the Defendants’ demand for

attorney’s fees to be assessed against the Plaintiff. The Court DISMISSES as moot
Defendants’ Motion for Summary Judgment (F.R. Civ. P. 56) and Judgment on the
Pleadings (F.R. Civ. P. 12(c)) (ECF No. 60) and Plaintiff Sineni’s Motion to Extend
Time to File Objection to Defendants’ Motion for Summary Judgment (ECF No. 68).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 21st day of December, 2016

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