Brown v. City of Chattanooga et al

Filing 79

MEMORANDUM OPINION.DISMISSED WITHOUT PREJUDICE.An appropriate Judgment Order will enter.Signed by District Judge Travis R McDonough on November 26, 2024. (SAC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
HOWARD BROWN,
Plaintiff,
v.
CITY OF CHATTANOOGA, et al.,
Defendants.

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Case No. 1:24-cv-42
Judge Travis R. McDonough
Magistrate Judge Susan K. Lee

MEMORANDUM OPINION
Before the Court is Plaintiff Howard Brown’s motion to withdraw his complaint. (Doc.
70.) For the following reasons, Plaintiff’s motion (id.) will be GRANTED.
I.

BACKGROUND
Plaintiff filed this action on January 18, 2024, bringing claims under 42 U.S.C. § 1983

and under state common law. (See Doc. 1.) On October 2, 2024, Plaintiff filed a motion to
amend his complaint. (See Doc. 65.) Before the Court could rule on the motion, Plaintiff filed a
motion to withdraw his complaint on October 18, 2024,1 (see Doc. 70), and the Court ordered
Defendants to respond to Plaintiff’s motion to determine whether Defendants opposed a
dismissal without prejudice. (See Doc. 71.) Before Defendants could respond, Plaintiff filed a
motion to stay the case. (See Doc. 72.) The Court construed this motion as also requesting the
certification of an interlocutory appeal and denied the motion. (See Doc. 74.) In the order
denying Plaintiff’s motion to stay, the Court ordered Plaintiff to respond within two weeks to

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The Court construes Plaintiff’s motion (Doc. 70) as requesting a dismissal of the case under
Rule 41(a)(2), as Plaintiff references Rule 41 in his motion.
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inform the Court whether he intended to pursue the action or to dismiss it pursuant to his motion
to withdraw his complaint. (Id. at 2.) The Court placed Plaintiff on notice that the Court could
dismiss his action if he failed to respond by that deadline. (Id.) Plaintiff has failed to respond to
the Court’s order within the time allotted, and, as a result, his motion to withdraw his complaint
is ripe for review.
Defendants oppose a dismissal without prejudice, arguing that Plaintiff wasted the
resources of the Court and of defense counsel, as: (1) Plaintiff informed Defendants that he
would be withdrawing his complaint on October 10, 2024, stating that, “I will be withdrawing
my complaint; I think I’ve made my point” (see Doc. 73-1); (2) Defendants sent Plaintiff a joint
stipulation of dismissal for his review by email (see Doc. 73, at 2; Doc. 73-3); (3) Plaintiff did
not respond to this email and instead filed his motion to stay the case (see Doc. 73, at 2); and (4)
after Defendants inquired as to Plaintiff’s position on the proposed joint stipulation for a third
time, Plaintiff replied “nah… I’ll let ya’ll respond to the court’s order.”2 (See id.; Doc. 73-5.)
Defendant Thomas also moves for attorney fees under 42 U.S.C. § 1988 (Doc. 73, at 3), while
Defendant Garrett anticipates moving for attorney fees at the close of the case (Doc. 76, at 2).
All Defendants request that Plaintiff be ordered to pay court costs. (Docs. 73, 75, 76.)
II.

STANDARD OF LAW
A. Rule 41
Rule 41(a)(2) of the Federal Rules of Civil Procedure states:
Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's
request only by court order, on terms that the court considers proper. If a

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Plaintiff is referring to the Court’s order requiring Defendants’ response to his motion to
withdraw his complaint, which stated that, “Defendants SHALL respond to Plaintiff’s motion
(Doc. 70) on or before November 1, 2024, stating whether they oppose the dismissal of
Plaintiff’s action without prejudice. Alternatively, the parties may file a stipulation of dismissal
in accordance with Rule 41(a)(1)(A)(ii) within the timeframe provided.” (See Doc. 71.)
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defendant has pleaded a counterclaim before being served with the plaintiff's
motion to dismiss, the action may be dismissed over the defendant's objection
only if the counterclaim can remain pending for independent adjudication. Unless
the order states otherwise, a dismissal under this paragraph (2) is without
prejudice.
“[T]he purpose of Rule 41(a)(2) is to protect the nonmovant . . . from unfair treatment.”
Bridgeport Music, Inc. v. Universal-MCA Music Pub., Inc., 583 F.3d 948, 953 (6th Cir. 2009).
“The Court must consider whether the non-movant ‘would suffer plain legal prejudice’ as the
result of a dismissal without prejudice.” Sohi v. Diversified Adjustment Serv., Inc., No. 1:15-CV563, 2016 WL 2745298, at *2 (S.D. Ohio May 10, 2016) (quoting Jones v. W. Rsrv. Transit
Auth., 455 F. App’x 640, 643 (6th Cir. 2012)). The Court must also consider: (1) the nonmovant’s “effort and expense of preparation for trial,” (2) “excessive delay and lack of diligence
on the part of the [movant] in prosecuting the action,” (3) “insufficient explanation for the need
to take a dismissal,” and (4) “whether a motion for summary judgment has been filed by the
[non-movant].” Bridgeport, 583 F.3d at 953 (quoting Grover by Grover v. Eli Lilly and Co., 33
F.3d 716, 718 (6th Cir.1994)). “The mere possibility that the nonmovant would face a second
lawsuit is an insufficient basis for finding” dismissal under Rule 41(a)(2) unwarranted. Sohi,
2016 WL 2745298 at *2 (citing Jones, 455 F. App’x at 643). “A Rule 41(a)(2) dismissal may be
conditioned on whatever terms the district court deems necessary to offset the prejudice the [nonmovant] may suffer from a dismissal without prejudice.” Id. at 954 (citations omitted). The
Court may require the movant to pay a non-movant’s costs, but this is not required under Rule
41(a)(2). See id.
B. 42 U.S.C. § 1988
Pursuant to 42 U.S.C. § 1988(b), “in any action to enforce a provision of” § 1983, “the
court, in its discretion, may allow the prevailing party” a “reasonable attorney’s fee as part of the

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costs.” Recovery under this statute is the default for a prevailing § 1983 plaintiff; the United
States Supreme Court has directed that a “prevailing plaintiff should ordinarily recover an
attorney’s fee unless special circumstances would render such an award unjust.” Hensley v.
Eckerhart, 461 U.S. 424, 429 (1983) (internal quotation marks and citations omitted). However,
a prevailing party can be either a defendant or a plaintiff. Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 420 (1978) (holding that § 1988 authorizes a fee award to a prevailing defendant,
who should also be protected “from burdensome litigation having no legal or factual basis”).
Under § 1988, “[a] prevailing defendant should only recover upon a finding by the district court
that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not
brought in subjective bad faith.” Wolfe v. Perry, 412 F.3d 707, 720 (6th Cir. 2005) (quoting
Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th Cir. 1994)). Additionally, § 1988 does not
allow for the recovery of attorney fees related to state-law claims. Ash v. Bezotte, No. 10-11875,
2013 WL 4777176, at *3 (E.D. Mich. Sept. 5, 2013).
In adjudicating a defendant’s request for attorney fees pursuant to § 1988, the Court
should determine whether: (1) the defendant is a “prevailing party”; (2) the plaintiff’s action was
frivolous, unreasonable, or without foundation; (3) the compensation sought is reasonable, as
assessed by the lodestar method; and (4) there are any exceptional considerations requiring an
upward or downward adjustment. See Hensley, 461 U.S. at 433–34; Wolfe, 412 F.3d 707 at 720.
The lodestar method requires a court to multiply the number of hours reasonably expended by
the applicable hourly market rate for legal services to find an objective basis for a lawyer’s
services. Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). There is a strong presumption that the
lodestar figure is reasonable, but a court should scrutinize the amount to ensure it does not

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produce windfalls to attorneys. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010);
Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995).
III.

ANALYSIS
A. Dismissal Under Rule 41
The Court finds that a dismissal with prejudice is not warranted under Rule 41. All

Defendants argue that Plaintiff wasted judicial resources.3 (See Doc. 73, at 2; Doc. 75; Doc. 76.)
Defendant Garrett specifically argues that Plaintiff willfully thwarted the judicial proceedings in
this matter, or at the least, recklessly disregarded the effect his conduct would have on the
proceedings. (See Doc. 76, at 1–2.) However, Defendants’ arguments against a dismissal
without prejudice only focus on the second factor of the Court’s Rule 41(a)(2) inquiry. See
Bridgeport, 583 F.3d at 953. The Court will use all factors of the test, and in doing so, it
concludes that a dismissal without prejudice is appropriate.
i. Effort and Expense
The first factor of the Rule 41(a)(2) inquiry weighs in favor of dismissal. The parties
completed discovery in this matter on October 28, 2024, and this process was not abnormally
onerous. While Defendants certainly expended reasonable effort in defending against Plaintiff’s
claims, they have not posited any reason that would suggest their efforts would not be useful if
Plaintiff were to bring a subsequent action. See Harper v. Muskingum Watershed Conservatory
Dist., No. 2:14-CV-2539, 2015 WL 2084709, at *2 (S.D. Ohio May 4, 2015) (considering the
applicability of “discovery and motions” if the plaintiff were to re-file a suit in state court);
Cogent Solutions Grp., LLC v. Brown, No. 2:12–CV–665, 2013 WL 6116052, at *6 (S.D. Ohio

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The City of Chattanooga and Defendant Garrett incorporate Defendant Thomas’s response
(Doc. 73) into their responses. (See Doc. 75; Doc. 76, at 2.)
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Nov. 20, 2013) (“A final point cuts against a finding of plain legal prejudice-it appears that much
of the effort and expense devoted to this case would be useful in a subsequently filed action.”);
Rosenthal v. Bridgestone/Firestone, Inc., 217 F. App’x 498, 502 (6th Cir. 2007) (affirming
dismissal because the defendants’ efforts would be useful in a subsequent action). In Cogent
Solutions Group, LLC v. Brown, the court also considered the amount of time the case had been
open and the time left until trial when evaluating the defendant’s effort and expense. 2013 WL
6116052 at *6. The court found that this factor favored dismissal when the plaintiff “moved to
dismiss this case well before trial and almost exactly one year after it began.”4 See id. Here, trial
was four months away when Plaintiff moved to dismiss his complaint and the action had been
open for less than a year (see Docs. 1, 64, 70). As such, the Court finds that this factor favors
dismissal.
ii. Delay in Prosecution
Defendants’ arguments primarily address the second factor of the Rule 41(a)(2) test, but
the Court finds them unconvincing. Defendants largely point to Plaintiff’s lack of decorum and
diligence following his motion to withdraw his complaint. (See Docs. 73, 75, 76.) However,
they also cite Plaintiff’s refusal to schedule a deposition. (Doc. 73, at 2.) While the Court agrees
that Plaintiff’s refusal to sit for a deposition and his conduct surrounding his motion to dismiss
the action was inappropriate, it fails to show Plaintiff displayed a lack of diligence in prosecuting
the action in its entirety. Most of this conduct occurred over a span of roughly three weeks. (See
Doc. 73, at 1–2.) The Court finds that Plaintiff’s apparent good-faith effort in the time preceding
his motion to withdraw his complaint outweighs his conduct after. Cf. Harper, 2015 WL

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The Cogent court also considered the potential utility of the defendant’s efforts in a subsequent
action. Id.
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2084709 at *2 (finding that a one-month delay is not “excessive”); Nuovo v. Whitacre, No. 2:10CV-240, 2010 WL 3825376, at *4 (S.D. Ohio Sept. 28, 2010) (considering the plaintiff’s “good
faith in bringing the suit” when ruling on a motion for voluntary dismissal). Further, Defendants
suffered minimal prejudice from Plaintiff’s reluctance to sit for a deposition, as he informed
them of his intent to dismiss the action before the discovery period closed. (See Doc. 73, at 1;
Doc. 64, at 2 (stating that discovery deadline was October 28, 2024).) The second factor of the
Rule 41(a)(2) test supports dismissal.
iii. Explanation for Dismissal
The third factor of the Rule 41(a)(2) inquiry favors Defendants. Plaintiff explains that he
moved to withdraw his complaint after “Defendants have been allowed to delay the proceedings,
avoid santions [sic], and use technical lawfare to exhaust the Plaintiff’s resources.” (Doc. 70.)
Defendants have not engaged in any conduct of the sort. To the extent Plaintiff’s motion to
withdraw his complaint was motivated by a lack of resources, this could be a valid reason for a
dismissal without prejudice. See Bridgeport, 583 F.3d at 955 (affirming dismissal when the
district court concluded that the “plaintiffs’ cost-benefit analysis provided a reasonable
explanation for seeking dismissal”). However, Plaintiff has offered insufficient evidence and
explanation to support this assertion, as the quote above provides the entirety of Plaintiff’s
explanation. (See Doc. 70.) This factor weighs against a dismissal without prejudice.
iv. Pending Summary Judgement
The last factor of the Rule 41(a)(2) inquiry supports dismissal. This question is
straightforward, as the Court must only consider whether Defendants have filed motions for
summary judgment. See Bridgeport, 583 F.3d at 953. Defendant Garrett filed a motion for
summary judgment on November 25, 2024, nearly a month after Plaintiff moved to dismiss the

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suit. (See Docs. 70, 77.) The Court finds that Defendant Garrett will suffer minimal prejudice in
this circumstance, as he had clear notice that the Court could dismiss the suit pursuant to
Plaintiff’s motion when he elected to move for summary judgment. Even assuming that
Defendant Garrett would be prejudiced by a dismissal, this factor of the Rule 41(a)(2) inquiry is
not controlling. See Rosenthal, 217 F. App’x at 502 (“[T]he existence of a pending motion for
summary judgment is a factor that should be considered, but its existence does not mandate a
finding of plain legal prejudice.”). Because no summary judgment motions were pending at the
time Plaintiff moved to withdraw his complaint, this factor favors dismissal.
v. The Rule 41(a)(2) Factors Favor Dismissal Without Prejudice
Three of the four factors in the Rule 41(a)(2) inquiry favor dismissing Plaintiff’s case.
Although Plaintiff offers little explanation for his motivation to dismiss the case, this alone in
insufficient to show Defendants will suffer prejudice significant enough to deny dismissal. See
Cogent, 2013 WL 6116052 at *9 (“While important, the explanation-for-dismissal factor does
not control the analysis of a motion to dismiss under Rule 41(a)(2).”).
Additionally, to the extent Defendants argue that Rule 41(b) warrants a dismissal with
prejudice, the Court is unconvinced. Defendant Garrett cites part of the standard describing
when a dismissal with prejudice is warranted under 41(b), as he concludes that Plaintiff
“thwarted” this judicial proceeding. (See Doc. 76, at 1–2); Schafer v. City of Defiance Police
Dep’t, 529 F.3d 731, 737 (6th Cir. 2008) (“To support a finding that a plaintiff's actions were
motivated by willfulness, bad faith, or fault under the first factor, the plaintiff's conduct must
display either an intent to thwart judicial proceedings or a reckless disregard for the effect of his
conduct on those proceedings.”) (internal quotation marks and citation omitted). Dismissal with
prejudice is a “harsh remedy reserved for extreme situations where a plaintiff has engaged in a

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clear pattern of delay or contumacious conduct.” Luckey v. Butler Cnty., No. 1:05CV388, 2006
WL 91592, at *3 (S.D. Ohio Jan. 13, 2006) (quoting Holt v. Pitts, 619 F.2d 558, 562 (6th Cir.
1980) (internal quotation marks omitted). While the Court agrees that a portion of Plaintiff’s
conduct was inappropriate, it does not find such conduct “extreme” or that Plaintiff engaged in a
pattern of such conduct. See Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir.1997)
(affirming a dismissal with prejudice when the plaintiff was “stubbornly disobedient and
willfully contemptuous” over the course of a year).
The Court finds that dismissal of this case without prejudice is appropriate. Defendants
are not entitled to attorney fees or costs as a condition of dismissal. See Ball v. Tenn. Valley
Auth., No. 2:13-CV-904, 2015 WL 556437, at *5 (S.D. Ohio Feb. 10, 2015) (“The award of
costs and attorney fees for a Rule 41(a) (2) dismissal is discretionary.”) (citing DWG Corp. v.
Granada Invs., Inc., 962 F.2d 1201, 1202 (6th Cir. 1992)).
B. Attorney Fees Under 42 U.S.C. § 1988
Defendant Thomas moves for attorney fees under 42 U.S.C. § 1988, and the Court finds
that Defendant Thomas is not entitled to fees. Outside of the arguments set forth above,
Defendant Thomas provides no evidence suggesting that Plaintiff’s “action was frivolous,
unreasonable, or without foundation.” (See Doc. 73); 42 U.S.C. § 1988. To recover under §
1988, Defendant Thomas must show that Plaintiff’s action was without “legal or factual basis.”
See Christiansburg Garment, 434 U.S. at 420. The evidence concerning Plaintiff’s conduct has
no bearing on the “legal or factual basis” of his suit. Further, this evidence is insufficient to
show that Plaintiff filed this action for an improper purpose. As the Court has already explained,
Plaintiff appears to have pursued this action in good faith, even if his decorum was lacking at

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times. A short stretch of unprofessional conduct does not nullify his other efforts. Accordingly,
Defendant Thomas is not entitled to attorney fees under § 1988.
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion to withdraw his complaint (Doc. 70) is

GRANTED. This action will be DISMISSED WITHOUT PREJUDICE pursuant to Rule
41(a)(2). Defendant Thomas’s request for attorney fees under 42 U.S.C. § 1988 (Doc. 73) is
DENIED. Plaintiff’s motion for leave to amend his complaint (Doc. 65) is DENIED AS
MOOT. Defendant Garrett’s motion for summary judgment (Doc. 77) is DENIED AS MOOT.
AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE

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