Oliver v. FCA U.S., L.L.C. et al

Filing 55

OPINION and ORDER Granting Plaintiff's 51 Notice of Voluntary Dismissal Without Prejudice ; Dismissing Defendant's 39 MOTION for Judgment on the Pleadings and 40 MOTION TO EXTEND Scheduling Order Deadlines as MOOT; and Dismissing Complaint Without Prejudice. Signed by District Judge Gershwin A. Drain. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY OLIVER,
Plaintiff,

Case No. 19-cv-11738

v.

UNITED STATES DISTRICT COURT
JUDGE GERSHWIN A. DRAIN

FCA US LLC,
Defendant.
______________________________/

OPINION AND ORDER GRANTING PLAINTIFF’S NOTICE OF
VOLUNTARY DISMISSAL WITHOUT PREJUDICE [#51]; DISMISSING
DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS [#39]
AND MOTION TO EXTEND SCHEDULING ORDER DEADLINES [#40] AS
MOOT; AND DISMISSING COMPLAINT WITHOUT PREJUDICE
I. INTRODUCTION
On June 10, 2019, Plaintiff Anthony Oliver, proceeding pro se, filed his
Complaint against Defendant FCA US LLC (“Defendant”) alleging that his 2018
Jeep Cherokee is defective. ECF No. 1. Plaintiff brings four claims against
Defendant, including (1) a violation of the Federal Magnusson-Moss Warranty Act;
(2) strict liability; (3) a violation of the Michigan Consumer Protection Act, MCL
§ 445.903; and (4) implied warranty under Michigan tort law. See id.
Presently before the Court is Plaintiff’s Request for Dismissal Without
Prejudice. ECF No. 51. After multiple attempts to have Plaintiff appear for a Status

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Conference, the Court ordered Defendant to respond to Plaintiff’s Request. ECF
No. 53. Defendant timely filed its Response on March 31, 2021. ECF No. 54. Upon
review of Plaintiff’s Request, the Court concludes that oral argument will not aid in
the disposition of this matter. Accordingly, the Court will resolve Plaintiff’s Request
on the relevant brief. See E.D. Mich. L.R. 7.1(f)(2). For the reasons that follow, the
Court will GRANT Plaintiff’s Request for Dismissal Without Prejudice [#51],
therefore DISMISSING the present Complaint WITHOUT PREJUDICE;
DISMISS AS MOOT Defendant’s Motion for Judgment on the Pleadings [#39] and
Motion to Extend Scheduling Order Deadlines [#40]; and ORDER Plaintiff to
comply with the pre-filing conditions outlined below for any future filings.
II. FACTUAL & PROCEDURAL BACKGROUND
The instant action stems from a roll away incident in a Walmart parking space
in Atlanta, Georgia. Plaintiff alleges that he incurred repair costs and he lost his job
as a Lyft and Uber driver as a result of the incident. ECF No. 1, PageID.6.
In 2018, Plaintiff purportedly purchased a 2018 Jeep Cherokee that was built
and manufacture by Defendant in Michigan.1 Id. at PageID.5. In September 2019,
Plaintiff alleges that he put the vehicle in “P” for park after finding a space at a

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In its Response, Defendant emphasizes that Plaintiff does not allege where the
vehicle was purchased or serviced. ECF No. 27, PageID.151.
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Walmart parking lot in Atlanta, Georgia. Id. He explains that despite his action, the
vehicle rolled away, hitting concrete parking dividers. Id.
Plaintiff purports that he then “jumped in and applied the emergency break.”
Id. Further, Plaintiff alleges that the dashboard’s indicator lights were illuminated
and that a message appeared on the dashboard, indicating that the shifter needed
immediate service. Id. He asserts that he took pictures on his cell phone to document
the vehicle; the illuminated lights; and dashboard message. Id.
“Several weeks or days later,” Plaintiff allegedly took the vehicle back to the
dealership where he was told there was damage to the rack and pin. Id. at PageID.6.
According to Plaintiff, he was given an estimate of $5,000 to repair the vehicle. Id.
Following this incident, he explains that he was unable to work as a Lyft and Uber
driver, which resulted in a loss of about “$6,000 plus a month” in income. Id.
Plaintiff lastly alleges that he had to pay out of pocket expenses for oil changes, car
payments, insurance, and money for public transportation to search for employment.
Id. at PageID.7.
After denying Plaintiff’s separate motions to Relate Case to MDL 2744 (ECF
No. 7) and Transfer Venue (ECF No. 24), the Court has attempted to meet with the
parties via videoconference on multiple occasions. Specifically, the Court has
scheduled a Status Conference and/or Motion Hearing on Defendant’s pending
Motion for Judgment on the Pleadings (ECF No. 39) and Motion to Extend

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Scheduling Order Deadlines (ECF No. 40) on four separate occasions between
October 13, 2020 and the date of this writing.2 As indicated in the Court’s previous
orders, Plaintiff is currently incarcerated in Georgia. Accordingly, the Court has
made sure to file Certificates of Service to Plaintiff’s address following each Order
and Notice of Hearing by Video Conference. Moreover, as explained in the Court’s
most recent March 16, 2021 Order, the Court made multiple attempts to get in
contact with Plaintiff’s correctional facility in order to explore the merits of
Plaintiff’s recent allegations that he does not have access to the law library. ECF
No. 53, PageID.275.
III. LEGAL STANDARD
The Court observes that Plaintiff’s request for a dismissal without prejudice
is governed by Federal Rule of Civil Procedure 41(a)(2). The Rule reads, in
pertinent part, that “an action may be dismissed at the plaintiff's request only by
court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). A
court’s primary consideration in assessing a request under Rule 41(a)(2) is to protect
the nonmoving party from unfair treatment. Grover v. Eli Lilly & Co., 33 F.3d 716,
718 (6th Cir. 1994). That protection is needed when the nonmovant will suffer
“some plain legal prejudice other than the mere prospect of a second lawsuit.” Id.

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Plaintiff did not appear for any of these scheduled Status Conferences and/or
Motion Hearing dates.
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In assessing whether “plain legal prejudice” is apt to occur, a court considers the
following factors: (1) the amount of time, effort, and expense that the defendant has
incurred in trial preparation; (2) any “excessive delay and lack of diligence on the
part of the plaintiff in prosecuting the action”; (3) the sufficiency of the plaintiff’s
explanation for the need to dismiss; and (4) whether a defendant has filed a motion
for summary judgment. Id. (citations omitted). These factors are merely a guide,
and the plaintiff need not prevail on all of them; nor is the district court required to
make any findings on the sufficiency of the plaintiff's explanation for
dismissal. Rosenthal v. Bridgestone/Firestone, No. 05-4451, 217 F. App’x 498, 502
(6th Cir. 2007) (internal quotation marks and citation omitted).
IV. ANALYSIS
Defendant argues that it has been prejudiced by Plaintiff’s failure to prosecute
this case. Specifically, Defendant asserts that it “has been prejudiced by continually
incurring attorney fees appearing at several hearings for which Plaintiff did not
appear and, by his failure to appear or participate, has precluded [Defendant] from
receiving a ruling on its motion to dismiss.” ECF No. 54, PageID.282. Moreover,
Defendant contends that Plaintiff’s inaction in this matter wastes judicial resources.
Id. at PageID.279. Defendant thus argues that the Court should deny Plaintiff’s
present request. For the reasons set forth below, the Court disagrees. Under the
circumstances of this particular case, the Court finds that the Grover factors weigh

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in favor of dismissing this matter without prejudice. However, in granting Plaintiff’s
request for voluntary dismissal without prejudice, the Court will impose limited prefiling conditions.
First, the Court looks to Defendant’s expended time and resources thus far.
Grover, 33 F.3d at 718. The Court acknowledges the attorney fees which Defendant
has incurred for the several Status Conferences in this matter, which have been
repeatedly adjourned in an effort to have Plaintiff appear via video teleconference.
ECF No. 54, PageID.282. Importantly, the Court does not include any fees related
to Defendant’s motion practice—particularly the Motion for Judgment on the
Pleadings (ECF No. 39) and the Motion to Extend Scheduling Order Deadlines (ECF
No. 40)—in its present assessment. Even if Defendant incurred substantial costs in
preparing such briefs, this work product could be used in a later suit should Plaintiff
re-file his Complaint. See Wargo v. Jungels, No. 11-10195, 2012 WL 1060094, at
*2 (E.D. Mich. Mar. 29, 2012); see also Rosenthal, 217 F. App’x at 502. The Court
finds that the consideration of Defendant’s incurred attorney fees, ECF No. 54,
PageID.282, “lends only modest support to a finding of prejudice.” Wargo, 2012
WL 1060094, at *2.
Second, the Court must analyze any delay and lack of diligence by Plaintiff in
prosecuting the action. Grover, 33 F.3d at 718. Defendant asserts that “[t]here is a
clear pattern of delay and inaction,” as Plaintiff has failed to diligently move the case

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to a conclusion. ECF No. 54, PageID.282. Defendant correctly identifies that the
Court sent notice of each Notice of Hearing and Status Conference, as well as
corresponding connection information, in the mail at Plaintiff’s updated address. Id.
at PageID.280. Nevertheless, the Court concludes that this factor weighs against a
finding of plain legal prejudice at this juncture. As expressed above, Plaintiff is
presently incarcerated in an out-of-state correctional facility. The Court has thus
proceeded in this matter with careful attention to Plaintiff’s ability to connect via
teleconference.

The Court attempted to contact Plaintiff’s facility in Georgia

multiple times in February and March 2021, but it was unsuccessful in each attempt.
While the Court does not excuse Plaintiff’s inaction entirely, it declines to hold
Plaintiff to the same standard of other pro se plaintiffs—who are not incarcerated—
who fail to appear and prosecute their cases. Indeed, the Court has previously
expressed its concern for Plaintiff’s assertions that he does not have access to a law
library at his present correctional facility. ECF No. 53, PageID.275 (citing ECF No.
49, PageID.262 n.1). While the Court was unable to confirm these allegations, the
Court remains hesitant to permit this matter to proceed forward without affording
Plaintiff an opportunity to substantively respond to Defendant’s Motions, including
a dispositive motion. Under the particular circumstances of this case, the Court
cannot conclude that Plaintiff has been guilty of excessive delay or lack of diligence
on his part alone.

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Third, the Court turns to Plaintiff’s explanation of the need for dismissal.
Grover, 33 F.3d at 718. In his Notice, Plaintiff asserts that he remains in quarantine
for COVID-19 and has no access to a law library. ECF No. 51, PageID.269. He
states that the “[p]rison staff will not allow [him] to leave quarantine.” Id. The
Court denotes that Plaintiff included the same explanation in his prior request for
dismissal. ECF No. 49, PageID.262. Defendant does not directly challenge the
sufficiency of this explanation; rather, it emphasizes that Plaintiff has never argued
or asserted his lack of access to the law library has impacted his ability to appear for
scheduled hearings and Status Conferences. ECF No. 54, PageID.280. At this
juncture, the Court sees no reason to speculate as to the possible merits of Plaintiff’s
claim. To emphasize once more, the Court was unable to confirm Plaintiff’s
allegations related to his law library access or his ability to connect via video
teleconference for prior proceedings. Accordingly, out of an abundance of caution,
the Court finds that this factor does not support a finding of plain legal prejudice.
Fourth, the Court looks to whether a motion for summary judgment has been
filed by the defendant. Grover, 33 F.3d at 718. As indicated supra, Defendant filed
a Motion for Judgment on the Pleadings on October 6, 2020. ECF No. 39. The
Court finds that this filing does not preclude dismissal. As another court within this
District explained, a dispositive motion should not preclude dismissal if other factors
do not indicate that the defendant will suffer plain legal prejudice. See Ball v.

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Perkins, No. 17-cv-11212, 2018 WL 636246, at *3 (E.D. Mich. Jan. 31, 2018) (citing
Rosenthal v. Bridgestone/Firestone, No. 05-4451, 217 F. App’x 498, 502 (6th Cir.
2007). Indeed, such a motion’s existence “does not mandate a finding of plain legal
prejudice.” Rosenthal, 217 F. App’x at 502. The Court denotes that Defendant can
re-submit its motion should Plaintiff re-file his Complaint. See Wargo, 2012 WL
1060094, at *3 (“[T]here is nothing to prevent Defendant from re-filing his summary
judgment motion in this new suit.”).
In sum, the Grover factors, when applied to the facts and particular
circumstances presented in this matter, do not establish the requisite plain legal
prejudice that would warrant the denial of Plaintiff’s request for voluntary dismissal.
Accordingly, the Court will dismiss this case without prejudice. Defendant’s Motion
for Judgment on the Pleadings (ECF No. 39) and Motion to Extend Scheduling Order
Deadlines (ECF No. 40) are therefore dismissed as moot. See Ball, 2018 WL
636246, at *3 (dismissing defendant’s motion for summary judgment as moot upon
concluding that plaintiff’s case shall be dismissed without prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(2)).
As a final matter, the Court will impose limited pre-filing conditions should
Plaintiff re-file his present Complaint. While the Court cannot absolutely foreclose
an individual from initiating an action or pursuing an appeal in federal court, Ortman
v. Thomas, 99 F.3d 807, 811 (6th Cir. 1996), the Court may impose certain pre-filing

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restrictions on an individual with a history of repetitive or vexatious litigation.
See Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir.1998); Ortman, 99
F.3d at 811. Defendant argues in its Response that “Plaintiff is a familiar presence
in and frequent consumer of federal courts across the country.” ECF No. 54,
PageID.279. It specifically points two federal courts, the Southern District of
Georgia and the Central District of California, which recently imposed pre-filing
conditions on Plaintiff as a vexatious litigant. Id.; see also ECF Nos. 54-1, 54-2.
Defendant emphasizes that, at least since the beginning of 2019, Plaintiff has filed
“a litany of actions in federal courts across the country.” ECF No. 54, PageID.279
(citing ECF No. 54-1, PageID.292). Upon review of Defendant’s first exhibit, which
is an order from the Southern District of Georgia, it appears Plaintiff has filed “at
least thirty lawsuits in federal court,” in addition to numerous actions in state court.
ECF No. 54-1, PageID.292. Defendant’s second exhibit, which is an order from the
Central District of California, also reveals that Plaintiff has filed numerous lawsuits
in federal court. ECF No. 54-2, PageID.301–02. Importantly, this order reveals that
Plaintiff has dismissed thirteen cases voluntarily or by joint stipulation. Id.
Defendant argues that these recent court orders, which included directives for
pre-filing conditions, also apply to the present matter before this Court. ECF No.
54, PageID.280.

While the Court declines to impose many of the pre-filing

conditions akin to the orders attached to Defendant’s Response in light of its

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aforementioned conclusion surrounding the particular circumstances of this matter,
including the fact that Plaintiff remains incarcerated and allegedly without access to
a law library due to the ongoing COVID-19 pandemic, the Court will order the
following pre-filing conditions:
(1) Plaintiff must include the following statement in any further filing related
to this matter should he re-file his present Complaint;
“I declare under penalty of perjury under the laws of the
United States of America that each fact asserted in the
foregoing is true and correct. Executed on [date].”
(2) Plaintiff must pay the Court’s filing fee should he re-file his present
Complaint; and
(3) Plaintiff must attach to any Complaint he files in the Eastern District of
Michigan, including this case should he re-file his present Complaint, a
signed affidavit swearing he has read Federal Rule of Civil Procedure 11
and will abide by its provisions.
V. CONCLUSION & ORDER
For the reasons discussed herein, IT IS HEREBY ORDERED that Plaintiff’s
Request for Dismissal Without Prejudice [#51] is GRANTED.
therefore DISMISSED WITHOUT PREJUDICE.

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This case is

IT IS FURTHER ORDERED that Defendant’s Motion for Judgment on the
Pleadings [#39] and Motion to Extend Scheduling Order Deadlines [#40] are
DISMISSED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff must comply with the pre-filing
order outlined above for any future filings, including:
(1) Plaintiff must include the following statement in any further filing related
to this matter should he re-file his present Complaint;
“I declare under penalty of perjury under the laws of the
United States of America that each fact asserted in the
foregoing is true and correct. Executed on [date].”
(2) Plaintiff must pay the Court’s filing fee should he re-file his present
Complaint; and
(3) Plaintiff must attach to any Complaint he files in the Eastern District of
Michigan, including this case should he re-file his present Complaint, a
signed affidavit swearing he has read Federal Rule of Civil Procedure 11
and will abide by its provisions.
IT IS SO ORDERED.
Dated:

April 26, 2021
/s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Judge

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record and on Anthony Oliver,
No. 1002060648, Wilcox State Prison, 470 South Broad Street,
Abbeville, Georgia 31001 on
April 26, 2021, by electronic and/or ordinary mail.
/s/ Teresa McGovern
Case Manager

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