Atad et al v. Atad

Filing 51

ORDER granting 44 Motion to Voluntary Dismiss claim for intentional infliction of emotional distress. The jury trial as to damages for the plaintiffs' remaining claims will proceed as scheduled for the court's January 26, 2015 term. The parties are reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 1/20/2015. Certified copy sent via US Mail to Jeffrey Basil Atad at 1148 N. Pershing Ave., Stockton, CA 95203-2144. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-416-F
ROSANNA DEE ATAD, a/k/a,
ROSANNA DEE GRANADOS,
and
IA, a minor child,
by her mother ROSANNA DEE ATAD,
Plaintiffs,
v.

JEFFREY BASIL ATAD,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER

This matter is before the court on the PlaintiffiA's motion [DE-44] for voluntary
dismissal of her claim for intentional infliction of emotional distress. For the reasons stated
herein, the motion is ALLOWED.

PROCEDURALANDFACTUALBACKGROUND
Plaintiffs lA and Rosanna Atad brought claims for assault, battery, false imprisonment, and
intentional infliction of emotional distress, as well as negligence and negligent infliction of
emotional distress. In responses to motions for summary judgment by both plaintiffs, the court
sent the defendant two Roseboro notices specifically advising him that failure to respond to the
motions may result in judgment being entered against him. See Roseboro Letter [DE-22, -39];
see also Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). The defendant did not respond to
either notice. The court granted Rosanna Atad's motion for summary judgment as to liability on

all her intentional tort claims. See Order of August 26, 2014 [DE-26]. The court likewise granted
summary judgment to IA as to liability for her claims for assault, battery, and false
imprisonment. See Order of January 12,2015 [DE-41]. However, the court denied IA's motion
for summary judgment as to the issue of liability for intentional infliction of emotional distress.
Trial is set in this matter for the court's January 26,2015 term. See id IA now moves to dismiss
her claim for intentional infliction of emotional distress. She has also moved for expedited
consideration given the proximity of trial.
DISCUSSION
A party may dismiss an action voluntarily, without an order of the court, by filing a
notice of dismissal at any time before service by the adverse party of an answer or a motion for
summary judgment. See Fed. R. Civ. P. 41(a)(l)(A)(i). In all other instances, "an action may be
dismissed at [a] plaintiff's request only by court order." Fed. R. Civ. P. 41(a)(2). In determining
whether to grant a motion for dismissal under Rule 41(a)(2), a court should consider the
following factors: "(1) the opposing party's effort and expense in preparing for trial; (2)
excessive delay or lack of diligence on the part of the movant; (3) insufficient explanation of the
need for a dismissal; and (4) the present stage oflitigation." Hobbs v. Kroger Co., No. 98-1831,
1999 WL 156045, at *1 (4th Cir. March 23, 1999).
Here, dismissal ofiA's claim for intentional infliction of emotional distress will not result
in prejudice the defendant. IA has requested dismissal of her claim with prejudice. This weighs
in the defendant's favor as he will avoid relitigation of the claim. The plaintiff has also shown
good cause and good faith in seeking the motion. The court agrees that dismissal will serve
judicial economy and simplify a trial of the issues.

2

lA has also moved the court for expedited consideration of her motion. Because the
defendant has done little to participate in this action beyond filing an answer, and because the
defendant will not be prejudiced by dismissal, an expedited ruling is warranted. The defendant
has not responded to discovery requests or to two motions for summary judgment, despite the
court's attempts to notify the defendant with Roseboro letters. The defendant has not retained
counsel nor complied with Rules 16 or 26 of the Federal Rules of Civil Procedure. The defendant
is unlikely to respond to the present motion, especially when it weighs in his favor. Therefore,
the court will rule on this motion without awaiting a response from the defendant.
CONCLUSION

For the foregoing reasons, lA's motion [DE-44] for voluntary dismissal of her claim for
intentional infliction of emotional distress is ALLOWED as to her claim for intentional infliction
of emotional distress. lA' s claim for intentional infliction of emotional distress is dismissed with
prejudice. The jury trial as to damages for the plaintiffs' remaining claims will proceed as
scheduled for the court's January 26,2015 term. 1
SO ORDERED.
r

This, theJ" day of January, 2015.

1

The court advises the parties that criminal cases require adherence to statutory as well as
Constitutional speedy trial requirements. For that reason, criminal trials on a term of court always
preempt civil trials. The parties should also be aware that the volatile nature of criminal cases sometimes
necessitates last-minute continuances of criminal trials, and often results in unexpected eleventh-hour
guilty pleas. For these reasons, it is unlikely that the trial in this matter will actually commence on
January 26, 2015
3