Avent et al v. State Farm Fire and Casualty Company
ORDER denying 44 Motion for sanctions and granting 46 Motion to Withdraw. Signed by US District Judge Terrence W. Boyle on 9/18/2017. Certified copy sent to Verniecee Whitaker Avent via US Mail to 701 Hammond Street, Rocky Mount, NC 27804. (Stouch, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
VERNIECEE WHITAKER AVENT,
ESTATE OF LUCINDA ALSTON WHITAKER
STATE FARM FIRE AND CASUALTY CO.,
This matter is before the Court on plaintiffs' motion to dismiss without prejudice pursuant
to Rule 41(b) of the Federal Rules of Civil Procedure [DE 46] and defendant's response in
opposition. [DE 47]. The matters have been fully briefed and are ripe for ruling. For the reasons
discussed below, the motion to dismiss is granted without prejudice and the complaint is dismissed.
This case arises out of a fire on August 15, 2013 at a home located at 707 Hammond Street
in Rocky Mount, North Carolina. Am. Compl [DE 19] 1-3
iii! 1-3. Defendant insured the home
and plaintiffs claimed that defendant failed to fully compensate them for the loss of dwelling,
personal property, and living expenses incurred. Id. at 3 if 5. After numerous motions relating to
discovery, plaintiff Avent's deposition was scheduled for June 6, 2017. When she did not appear,
defendant moved for sanctions and to compel her to
her deposition. On July 11, 2017,
plaintiff moved to withdraw her complaint. Defendant filed a response in opposition to plaintiff's
motion on August 1, 2017.
Plaintiff is proceeding pro se on behalf of herself and the estate of her mother. Pro se
litigants are traditionally entitled to a certain amount of leniency from the courts. Erickson v.
Pardus, 551 U.S. 89 (2007) ("A document filed prose is to be liberally construed, and apro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." (internal quotation marks omitted)). The relatively unsophisticated
framing of a motion does not, on its own, prevent it from being successful. See, e.g., Davis v. South
Carolina Dept. ofCorrections, 2007 WL 2156699 (D.S.C. 2007) (treatingpro se plaintiffs motion
to "strike" his case from the Court docket as a Rule 41(a)(2) motion to dismiss).
Accordingly, this Court will treat plaintiffs motion to dismiss without prejudice as coming
under Federal Rule of Civil Procedure 41(a)(2). This rule allows plaintiff to petition the Court for
a dismissal of her claims, without prejudice, without a stipulation to the dismissal by the opposing
party. Fed. R. Civ. P. 41(a)(2). "The purpose of Rule 41(a)(2) is freely to allow voluntary
dismissals unless the parties will be unfairly prejudiced." Patten v. N Carolina Dep 't of Pub.
Safety, 2016 WL 1595382 at *2 (E.D.N.C. 2016) (quoting Andes v. Versant Corp., 788 F.2d 1033
(4th Cir. 1986). A plaintiffs motion under the rule "should not be denied absent substantial
prejudice to the defendant." Andes v. Versant Corp, 788 F.2d 1033, 1036 (4th Cir. 1986)).
Prejudice must be some harm "other than the mere prospect of a second lawsuit." Patten at *2.
In its response opposing plaintiffs motion, defendant indicates the harm it would suffer
would be plaintiffs "opportunity to refile the action." Def. Mot. at 2 [DE 47]. Defendant does not
allege harm such that plaintiffs Rule 41(a)(2) motion should be denied. Therefore, plaintiffs
motion to dismiss her claim without prejudice will be granted, and defendant's motion opposing
the dismissal will be denied. As the claim is dismissed, defendant's motions for sanctions and to
compel plaintiff to attend her deposition will also be denied.
While the dismissal is without prejudice, meaning plaintiff, should she so choose, could
bring the lawsuit again, the Court cautions that generally a plaintiff proceeding pro se cannot
litigate on behalf of another party. See Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 400 (4th
Cir. 2005) ("The right to litigate for oneself, however, does not create a coordinate right to litigate
for others.") (emphasis in original). In the limited setting where a pro se plaintiff is also the
administrator of an estate, and there are no other beneficiaries or creditors, some circuits have
permitted a plaintiff to proceed on behalf of the estate as well. See, e.g., Rodgers v. Lancaster
Police & Fire Dept., 819 F.3d 205, 211 (5th Cir. 2016); Bass v. Leatherwood, 788 F. 3d 228, 23031 (6th Cir. 2015); Guestv. Hansen, 603 F.3d 15, 19-21 (2d Cir. 2010). The Fourth Circuit has yet
. to directly address whether a plaintiff may do so. See Witherspoon v. Jeffords Agency, Inc., 88
Fed. Appx. 659, 659 (4th Cir. 2014) (unpublished) (remanding a case to determine "whether there
are other beneficiaries, and whether there are any creditors involved."). Should plaintiff elect to
take advantage of the non-prejudicial nature of the dismissal, plaintiff would need to clearly show
that she can proceed.
For the foregoing reasons, plaintiffs' motion to dismiss without prejudice [DE 46] is
GRANTED and defendant's motion for sanctions and other relief [DE 44] is DENIED. The Clerk
is DIRECTED to enter judgment accordingly and close the case.
SO ORDERED, this 18th day of September, 2017.
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