Zhang v. Fischer et al

Filing 12

MEMORANDUM OPINION (c/m to Plaintiff 6/25/15 sat). Signed by Judge Deborah K. Chasanow on 6/25/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
EMILY ZHANG
:
v.

:

Civil Action No. DKC 15-0991

:
MORRIS FISCHER, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case
are: (1) a motion to dismiss or for summary judgment filed by
Defendants Morris Fischer and Morris E. Fischer, LLC (ECF No.
8); and (2) a motion for voluntary dismissal filed by Plaintiff
Emily Zhang (ECF No. 10).
deemed necessary.

The court now rules, no hearing being

Local Rule 105.6.

For the following reasons,

Plaintiff’s motion for voluntary dismissal will be granted and
Defendant’s motion to dismiss or for summary judgment will be
denied as moot.
I.

Background
Plaintiff commenced this action on April 6, 2015, by filing

a

complaint

against

Defendants

Morris

Fischer

and

Morris

E.

Fischer, LLC alleging breach of contract, breach of fiduciary
duty,

legal

malpractice,

and

fraud

in

connection

with

Defendants’ representation of Plaintiff in her employment action
against Lockheed Martin Corporation.

(ECF No. 1).

On June 5,

2015, Defendants moved to dismiss or for summary judgment.
No. 8).

Plaintiff did not oppose the motion.

(ECF

Instead, on June

22, 2015, she moved to dismiss all of her claims voluntarily.
(ECF No. 10).
voluntarily.
II.

Defendants oppose Plaintiff’s request to dismiss
(ECF No. 11).

Analysis
Plaintiff

argues

that

dismissed without prejudice.

the

case

should

(ECF No. 10).

be

voluntarily

Plaintiff represents

that she “decided not to proceed with this legal action[,]” but
that her request “reflects nothing about the merits of [her]
claims.”

(Id. at 1).

Fed.R.Civ.P. 41(a)(2) allows for dismissal by court order
after the opposing party has served either an answer or motion
for summary judgment and without consent of all parties who have
appeared.

It provides that “an action may be dismissed at the

plaintiff’s request only by court order, on terms that the court
considers proper.”

Id.

The purpose of Rule 41(a)(2) is “to

allow voluntary dismissals unless the parties will be unfairly
prejudiced.”

Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir.

1987) (citations omitted).

The decision to grant or deny a

voluntary dismissal under Rule 41(a)(2) “is a matter for the
discretion of the district court, and its order will ordinarily
not be reversed except for an abuse of discretion.”

Id.

The

factors that should guide a district court in deciding a motion
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under Rule 41(a)(2) include “the opposing party’s effort and
expense in preparing for trial, excessive delay and lack of
diligence on the part of the movant, insufficient explanation of
the need for a voluntary dismissal, and the present stage of
litigation.”

Miller v. Terramite Corp., 114 F.App’x. 536, 540

(4th Cir. 2004) (quoting Phillips USA, Inc., v. Allflex USA,
Inc.,

77

prejudice

F.3d
to

354,

the

358

(10th

non-moving

Cir.

party

is

1996)).
a

key

The
factor,

potential
but

the

Fourth Circuit has recognized that “[its] jurisprudence on the
issue of what constitutes sufficient prejudice to a nonmovant to
support denial of a motion for voluntary dismissal under Rule
41(a)(2) is not free from ambiguity.”

Howard v. Inova Health

Care Servs., 302 F.App’x 166, 179 (4th Cir. 2008), cert. denied,
129 S.Ct. 2766 (2009).

The Fourth Circuit in Howard further

explained:
In Davis, we noted that “[i]t is well
established that, for purposes of Rule
41(a)(2), prejudice to the defendant does
not result from the prospect of a second
lawsuit”
or
“the
possibility
that
the
plaintiff will gain a tactical advantage
over the defendant in future litigation.”
819 F.2d at 1274-75. Similarly, in Fidelity
Bank PLC v. N. Fox Shipping N.V., we held
that “the mere filing of a motion for
summary judgment is not, without more, a
basis
for
refusing
to
dismiss
without
prejudice.”
242 F.App’x 84, 89 (4th Cir.
2007) (quoting Andes [v. Versant Corp.], 788
F.2d 1033, 1036 n.4 [(4th Cir. 1986)]
(internal
quotations
and
alterations
omitted)).
However, we have also found on
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multiple occasions that a district court
does not abuse its discretion in denying a
motion for voluntary dismissal if the case
has advanced to the summary judgment stage
and the parties have incurred substantial
costs in discovery.
See, e.g., Miller, 114
F.App’x at 540 (affirming district court’s
decision
that
plaintiff’s
motion
for
voluntary dismissal was “untimely and would
waste judicial resources” because the motion
was filed well after discovery had closed
and a dispositive order was imminent);
Francis v. Ingles, 1 F.App’x 152, 154
(4th Cir. 2001) (affirming district court’s
denial
of
motion
to
dismiss
without
prejudice because the “plaintiff’s motion
came after a lengthy discovery period and
merely one week before the scheduled trial
date” and because “the motivation for the
motion appeared to be to circumvent” a
discovery ruling, which counsel could have
avoided “by deposing the witness within the
discovery period”); Skinner v. First Am.
Bank of Va., 64 F.3d 659, 1995 WL 507264, at
*2-3 (4th Cir. 1995) (stating that “[t]he
expenses of discovery and preparation of a
motion for summary judgment may constitute
prejudice sufficient to support denial of a
voluntary
dismissal”
and
noting
that
granting a motion to dismiss is not required
to allow a party to “avoid an adverse ruling
in federal court”); Sullivan v. Westinghouse
Elec. Corp., 848 F.2d 186, 1988 WL 54059, at
*2 (4th Cir. 1988) (“Given the advanced stage
of the proceedings, the district court’s
denial of [the plaintiff’s] motion was not
an abuse of discretion.”).
Howard,

302

F.App’x

at

179-80.

Ultimately

the

decision

is

highly discretionary.
Considering the foregoing factors, Plaintiff’s motion for
voluntary dismissal without prejudice will be granted.

Although

Defendants oppose Plaintiff’s request for voluntary dismissal,
4

they provide no basis for finding that they will be unfairly
prejudiced

by

the

dismissal

without

prejudice.

Defendants

indicate that they “will only consent to Plaintiff’s request if
Plaintiff agrees to pay the fees associated with preparing the
motion to dismiss or in the alternative for summary judgment.”
(ECF No. 11, at 2).

As set forth above, however, the mere fact

that Defendants moved to dismiss or for summary judgment does
not provide a basis for refusing to dismiss without prejudice.
Moreover, this case is still in its preliminary stages as the
parties have not taken discovery and no scheduling order has
been

issued.

represent

that

Defendants
they

–

an

expended

attorney

$4,998

in

and

a

having

law

-

prepare

to

firm

a

thirteen-page motion to dismiss or for summary judgment.

(Id.).

It cannot be said, however, that they have incurred substantial
costs in having to defend this case so far.

See, e.g., Wellin

v. Wellin, No. 2:13-cv-1831-DCN, 2014 WL 234216, at *11 (D.S.C.
Jan. 22, 2014) (granting motion for voluntary dismissal where a
party incurred almost $200,000 in litigation costs, but the case
was

“nevertheless

reflects
case

nor

that

in

its

Plaintiff

displayed

a

infancy.”).

has

lack

neither
of

Moreover,
excessively

diligence.

For

the

delayed
the

reasons, the case will be dismissed without prejudice.

5

record
this

foregoing

III. Conclusion
For the foregoing reasons, Plaintiff’s motion for voluntary
dismissal will be granted and the case will be dismissed without
prejudice.

Defendants’

motion

judgment will be denied as moot.

to

dismiss

or

for

summary

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

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