Smith v. Holly Hills Development et al

Filing 25

Memorandum and Order Conditionally Granting Plaintiff's 23 Motion for Voluntary Dismissal Without Prejudice Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELISSA FAY SMITH,
Plaintiff,
vs.

Case No. 13-12503

HOLLY HILLS DEVELOPMENT, LLC,
SHECTER LANDSCAPING, INC.,
KENNETH J. SHECTER, and CITY OF
KEEGO HARBOR,

HON. AVERN COHN

Defendants.
____________________________________/
MEMORANDUM AND ORDER CONDITIONALLY
GRANTING PLAINTIFF’S MOTION FOR
VOLUNTARY DISMISSAL WITHOUT PREJUDICE (Doc. 23)
I.
This is a deprivation of rights case. Plaintiff owns residential property in the city of
Keego Harbor. Her property adjoins a landscaping development business owned by Holly
Hills Development, Shecter Landscaping, Inc. and Kenneth Shecter (the Shecter
defendants). Plaintiff alleges that the Shecter defendants have operated the business in
violation of Keego Harbor zoning ordinances. In addition, plaintiff alleges that the Shecter
defendants are violating a 2004 consent judgment entered into between them and Keego
Harbor in Oakland County Circuit Court. The complaint makes the following claims:
Count I

Violation of 42 U.S.C. § 1983 by the City of Keego Harbor

Count II

Violation of 42 U.S.C. § 1985(3) by all defendants

Count III

Violation of 42 U.S.C. § 1986 by all defendants1

Now before the Court are two motions. First, the Shecter defendants filed a motion
to dismiss (Doc. 10). Second, after oral argument, plaintiff filed a motion to voluntarily
dismiss, without prejudice, the claims against the Shecter defendants (Doc. 23).
II.
The Court CONDITIONALLY GRANTS plaintiff’s motion subject to payment of
attorneys’ fees. The Court defers a decision on the Shecter defendants’ motion to dismiss.
III.
Under Fed. R. Civ. P. 41(a)(2), a district court may dismiss an action at the plaintiff’s
request, without prejudice, “on terms that the court considers proper.” Courts have
discretion when dismissing an action under Fed. R. Civ. P. 41(a)(2) to require a plaintiff to
pay attorneys’ fees and costs attributable to defending the action. Bell-Coker v. City of
Lansing, No. 1:07-cv-812, 2009 WL 80291, at *3 (W.D. Mich. Jan. 9, 2009) (citation
omitted). “The court also has discretion, however, to fashion a less harsh remedy that still
adequately protects the rights and interests of the defendant.” Id. (citation omitted).
IV.
This action was recently filed on June 7, 2013. It is still in its preliminary stages.
Given the little time that has passed, it is appropriate to allow plaintiff to voluntarily dismiss
her claims against the Shecter defendants.

1

The complaint also made claims of malicious prosecution, improper regulatory taking,
and nuisance. The Court declined to exercise subject-matter jurisdiction over the state
law claims. Therefore, these counts were dismissed. See (Doc. 19).
2

However, the Shecter defendants expended resources in filing the motion to dismiss.
Therefore, dismissal of plaintiff’s claims against the Shecter defendants is conditioned on
payment of the attorneys’ fees incurred in defending against plaintiff’s claims.
V.
The Shecter defendants shall file proof of their attorneys’ fees by Monday, October
28, 2013. Plaintiff shall file a response by Monday, November 4, 2013. If the plaintiff
agrees to pay the attorneys’ fees subject to the amount to be determined by the Court,
plaintiff’s motion will be granted and the Shecter defendants’ motion to dismiss will be
dismissed as moot.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: October 24, 2013
Detroit, MI
I hereby certify that a copy of the foregoing document was mailed to the attorneys of record
on this date, October 24, 2013, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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