Eastern Savings Bank, FSB v. Whyte et al

Filing 70

MEMORANDUM AND ORDER re: 69 Motion to Dismiss. The Court exercises its discretion to dismiss this action without prejudice as against Michael Davenport. The Clerk of Court is directed to enter judgment accordingly. So Ordered by Chief Judge Carol Bagley Amon on 4/4/2016. (c/m to Michael Davenport @ 232 Tompkins Ave, Apt 2L, Brooklyn, NY 11216 and 8 Indian Field Road, Satauket, NY 11733)(fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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EASTERN SAVINGS BANK, FSB,
Plaintiff,
-againstAUL WHYTE a/k/a AUL BRIAN WHYTE; JFD
CONTRACTING CO., INC.; CONSOLIDATED
EDISON CO. OF NEW YORK, INC.; FIA CARD
SERVICES, N.A.; NEW YORK CITY PARKING
VIOLATIONS BUREAU; NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD; MICHAEL
DAVENPORT; ANDREW DAVENPORT; CHRIS
DAVENPORT; MICHAEL PEREZ; JENNIFER
TARIN; ALEXANDRO TARIN; and ROBERT
CENADA,
Defendants.

NOT FOR PUBLICATION
MEMORANDUM AND ORDER
13-CV-6111 (CBA)(LB)

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AMON, Chief United States District Judge:
Plaintiff Eastern Savings Bank, FSB ("ESB") requests a voluntary dismissal of this
foreclosure action as against defendant Michael Davenport pursuant to Federal Rule of Civil
Procedure 4l(a)(2). (D.E. # 69, Defs.' Motion for Voluntary Dismissal ("Defs.' Mot.").)
Davenport, proceeding pro se, answered the amended complaint on January 21, 2014.
(D.E. # 34.) Once a defendant has answered the complaint, "an action may be dismissed at the
plaintiffs request only by court order, on terms that the court considers proper." Fed. R. Civ. P.
41 (a)(2). Such dismissals are left to the "sound discretion" of the trial court. Hoolan v. Stewart
Manor Country Club, LLC, 887 F. Supp. 2d 485, 496 (E.D.N.Y. 2012) (quoting Catanzano v.
Wing, 277 F.3d 99, 109 (2d Cir. 2001)).
In the Second Circuit, "[t]wo lines of authority have developed with respect to the
circumstances under which a dismissal without prejudice might be improper." Camilli v. Grimes,
436 F.3d 120, 123 (2d Cir. 2006).

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The first holds that dismissal would be improper if"the defendant would suffer some plain
legal prejudice other than the mere prospect of a second lawsuit." Id. (quoting Cone v. W. Va.
Pulp & Paper Co., 330 U.S. 212, 217 (1947)). "Legal prejudice is the impairment of'some legal
interest, some legal claim, [or] some legal argument."' Staten Island Terminal, LLC v. Elberg,
No. l l-CV-3262 (RRM) (LB), 2012 WL 1887126, at *3 (E.D.N.Y. May 23, 2012) (quoting
Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996)). When determining
whether a defendant will suffer legal prejudice as a result of ordering a Rule 41 (a)(2) dismissal,
the district court "primarily seeks to protect a defendant who is ready to pursue a claim or defense
'in the same action that the plaintiff is seeking to have dismissed."' Id. (quoting Camilli, 436 F.3d
at 124) (emphasis in original). Here, dismissal under Rule 4l(a)(2) would not cause Davenport to
suffer any plain legal prejudice because he has not alleged any counterclaims or defenses that
would be affected by dismissal of this action, (see D.E. # 34, Answer). See id. (concluding that
defendant who did not allege any counterclaims or defenses that would be affected by dismissal
had not shown that Rule 4l(a)(2) dismissal would cause plain legal prejudice).
The second line of authority indicates that a district court should consider various factors,
known as the Zagano factors, in determining whether dismissal is appropriate. Camilli, 436 F.3d
at 123 (citingD'Altov. DahonCal.,Inc., 100F.3d281,283 (2dCir.1996),andZaganov. Fordham
Univ., 900 F.2d 12, 14 (2d Cir. 1990)). The Zagano factors include: "(!)the plaintiffs diligence
in bringing the motion; (2) any 'undue vexatiousness' on plaintiffs part; (3) the extent to which
the suit has progressed, including the defendant's efforts and expense in preparation for trial; (4)
the duplicative expense ofrelitigation; and (5) the adequacy of plaintiffs explanation for the need
to dismiss." D'Alto, 100 F.3d at 283 (quoting Zagano, 900 F.2d at 14).
A review of the Zagano factors likewise supports dismissal without prejudice. ESB has
exercised diligence in requesting this dismissal and nothing in the record suggests vexatious
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conduct by ESB. Moreover, Davenport has not appeared, participated in motion practice or
discovery, or otherwise defended this action since answering the complaint, which he did pro se.
Davenport has thus incurred minimal, if any, costs in litigating_ this action and has not expended
any effort engaging in discovery or preparing for trial.
Finally, defendants explanation for seeking dismissal is adequate. Defendants seek to
voluntarily dismiss their claims against Davenport because he no longer appears to be a necessary
or appropriate party to this action. (Defs.' Mot. at I.) Davenport was named as a defendant
because, at the time the amended complaint was filed, he was a tenant of the property that is the
subject of this mortgage foreclosure action ("the Property"). (See D.E. # 6, Am. Comp!. iJ 9.) Mail
sent to Davenport at the Property has been returned as undeliverable, (D.E. # 65), however,
indicating that he is no longer a tenant. Moreover, Davenport's answer stated that he was a monthto-month tenant: "[A] month-to-month tenant is not considered a necessary party to a mortgage
foreclosure action." Oligbo v. Louis (In re Oligbo), 328 B.R. 619, 638 (Bankr. E.D.N.Y. 2005);
see also N.Y. Real Prop. Acts. Law§ 1311 (establishing that only "tenant in fee, for life, by the
curtesy, or for years" must be made a party to a foreclosure action). Given that Davenport appears
to have vacated the property and, in any event, was not a necessary party to begin with, the Court
agrees that he is no longer a necessary or appropriate party to this action.
For these reasons, the Court exercises its discretion to dismiss this action without prejudice
as against Michael Davenport. The Clerk of Court is directed to enter judgment accordingly.
SO ORDERED.
Dated: April d.,, , 2016
Brooklyi/, New York

s/Carol Bagley Amon
Carol Bagle
mo
Chief United Stat

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et Judge