Williams et al v. La Quinta Developement Partners, L.P. et al

Filing 22

ORDER: Plaintiffs' Motion to Dismiss, Dkt. 18 ,is GRANTED and the case is dismissed without prejudice. Defendants'Motion to Dismiss for Failure to Prosecute, Dkt. 15 , and their Motion to Strike or in the Alternative, for Permission to File a Reply,Dkt. 20 are DENIED as moot. Signed by Judge Terrence G. Berg on 9/21/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

TARVIS WILLIAMS and
CORIE GREEN,
Plaintiffs,
Case No. 16-2483
Magistrate Jeffrey Frensley
Hon. Terrence G. Berg

v.
LA QUINTA DEVELOPMENT PARTNERS L.P. and
its wholly-owned subsidiary
BRE/LQ PROPERTIES,
L.L.C., d/b/a LA QUINTA
INN,
Defendants.

ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS
WITHOUT PREJUDICE (Dkt. 19) AND DENYING AS
MOOT DEFENDANTS’ MOTIONS TO DISMISS FOR
FAILURE TO PROSECUTE (Dkt. 15) AND TO STRIKE OR
IN THE ALTERNATIVE FOR PERMISSION TO FILE A
REPLY (Dkt. 20)
I.

Introduction

This is a negligence action against a Nashville La Quinta Inn for
failing to adequately protect its guests from outside intruders. Tarvis Williams and Corie Green (“Plaintiffs”) were followed to their
room during a stay at La Quinta, tortured, and robbed. Dkt. 1-1.

Plaintiffs originally filed this action in state court in August,
2016 and Defendants removed it to federal court in September. Dkt.
1. After the case was removed Plaintiffs did little to advance this
litigation: they twice failed to submit proposed case management
orders, did not appear at the Initial Case Management Conference,
and did not serve or respond to any discovery during the discovery
period, which ended on June 22, 2017. See Dkts. 15 at Pg ID 2-3;
20-1 at Pg ID 119; 21 at Pg ID 127.
In March, 2017 Defendants filed a Motion to Dismiss for Failure
to Prosecute, Dkt. 15. Plaintiffs did not respond to Defendants Motion to Dismiss until June 9, 2017, when they also filed their own
Motion to Dismiss. Dkts. 17; 19.
Both parties agree that this case should be dismissed. Dkt. 18
(Plaintiffs’ Mot. to Dismiss); Dkt. 21 (Defendant’s Mot. in Opposition to Plaintiffs’ Mot. to Dismiss). Their only disagreement is
whether the dismissal should be with or without prejudice. Id. Defendants also argue they are entitled to attorneys’ fees for defending against this action. Dkt. 21. For the reasons outlined below,
Plaintiffs’ Motion to Dismiss, Dkt. 18, is GRANTED without prejudice and without the condition that Plaintiffs pay Defendants’ attorneys’ fees. Defendants’ Motion to Dismiss for Failure to Prosecute and their Motion to Strike or in the Alternative for Permission
to File a Reply, Dkts. 15; 20, are DENIED as moot.
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II.

Background

On August 19, 2015 three assailants followed Plaintiffs to their
room in a Nashville La Quinta, forced their way into that room, and
then shackled and assaulted Plaintiffs. Dkt. 1-1 at Pg. ID 9. The
assailants beat Plaintiff Williams and burned him with a hot iron,
so that he would reveal where Plaintiffs were storing their money
and other valuables. Id. The assailants also threatened to kill Plaintiffs. Id. After the assault, Plaintiff Williams was hospitalized for
his burns and other injuries. Id. At Pg ID 9-10.
One year later, Plaintiffs filed this action in Tennessee state
court against La Quinta Development Partners, L.P, and its subsidiary property management company—BRE/LQ Properties
LLC—which owned and operated the La Quinta at which Plaintiffs
were assaulted. Dkt. 1-1. In their Complaint, Plaintiffs alleged that
Defendants breached their duty of care by failing to provide adequate security for their guests; particularly given the hotel’s location in a known high-crime area. Dkt. 1-1 at Pg ID 10. Plaintiffs
requested 2 million dollars in compensatory damages and 5 million
dollars in exemplary and punitive damages. Dkt. 1-1 at Pg ID 12.
Defendants removed this case to federal court on September 13,
2016, Dkt. 1, and filed their Answer to the Complaint on September
20, 2016. Dkt. 6. Defendants then submitted their first, Proposed
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Case Management Order on November 7, 2016. Dkt. 7. The Court
set the Initial Case Management Conference for December 8, 2016.
Dkt. 8. Defendants filed a second Proposed Case Management Order on December 5, 2016. Dkt. 9.
Plaintiffs’ original counsel was not admitted in the Middle District of Tennessee, so Plaintiffs’ local counsel, Attorney Luvell Glanton, entered an initial appearance on December 7, 2016. Dkt. 10.
On December 8, 2016, Defendants filed a motion on behalf of Plaintiffs to continue the Initial Case Management Conference until January 11, 2017, Dkt. 11, which the Court granted. Dkt. 12.
In advance of that rescheduled case management conference, Defendants submitted a third Proposed Case Management Order,
which noted that Plaintiffs had not initiated any preparation of the
proposed order as they were required to under Local Rule 16.01(d),
nor had they responded to any drafts of the proposed orders that
Defendants had sent to them. Dkt. 13 at Pg ID 46, n. 1. Plaintiffs
did not appear at the rescheduled case management conference on
January 11, 2017. Dkt. 14 at Pg ID 51, and the Court adopted Defendants’ proposed discovery and briefing schedule. Id.
On March 17, 2017, Defendants filed a Motion to Dismiss for
Failure to Prosecute under Fed. R. Civ. P. 37(c)(1) and 41(b). Dkt.
15. Defendants seek dismissal under either Rule 37(c)(1) (because
Plaintiffs have not complied with court orders to initiate the case
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management process, appear at the case management conference,
and serve their Initial Disclosures under Fed. R. Civ. P. 26); or under Rule 41(b) (because Plaintiffs have not prosecuted their case);
or under both rules. Dkt. 15 at Pg ID 57, 59.
This case was reassigned to Judge Terrence Berg in the Eastern
District of Michigan on April 11, 2017 at which time Defendants’
Motion to Dismiss for Failure to Prosecute, Dkt. 15, was still pending without a response.
On June 9, 2017 Plaintiffs filed both an opposition to Defendants’
Motion to Dismiss, Dkt. 15, and their own Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(a)(2). Dkts. 17; 18.
In their response to Defendants’ Motion to Dismiss Plaintiffs
“acknowledg[ed] that they [had] failed to initiate the preparation
and submission of a proposed case management order,” and “that
they [had] made minimal effort to move this case forward.” Dkt. 17
at Pg ID 103. Plaintiffs’ counsel’s justification for this was that he
had more recently joined the case as local counsel—because lead
counsel was not admitted in the Middle District of Tennessee—had
only received one electronic notice in the case since entering his appearance, and was thus unaware of Defendants’ Motion to Dismiss
for Failure to Prosecute. Id.
In their Motion for Order Dismissing Case Pursuant to Fed. R.
Civ. P. 41(a)(2), Plaintiffs state they can no longer afford to litigate
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the case and assert that dismissal without prejudice or “curative
conditions” (i.e., attorneys’ fees) is warranted because Defendants
have not spent significant time or money preparing for trial, neither
party has begun discovery, and Defendants have not yet filed a
summary judgment motion. Dkt. 19 at Pg ID 109.
On June 22, 2017 Defendants responded by filing two motions.
Dkts. 20; 21. First, they filed a Motion to Strike or in the Alternative, for Permission to File a Reply to Plaintiffs’ Motion to Dismiss.
Dkt. 20. In that motion Defendants argue that Plaintiffs’ opposition
to Defendants Motion to Dismiss was not timely filed and should
therefore be stricken. Dkt. 20 at Pg ID 116. Alternatively, Defendants’ argue they should be given leave to file a reply to Plaintiffs’
opposition. Id. Defendants attached their proposed reply in support
of their Motion to Dismiss for Failure to Prosecute, Dkt. 20-1, in
which they argue that Plaintiffs had made no effort to pursue the
case beyond filing the initial complaint, and that local counsel’s assertions that he had not received notice of Defendants’ Motion to
Dismiss were false. Dkt. 20-1 at Pg ID 118-19. This conduct, Defendants assert, warrants dismissal of the case with prejudice for
failure to prosecute. Id. at Pg ID 120.
Second, Defendants filed a Response in Opposition to Plaintiffs’
Motion to Dismiss. Dkt. 21. Defendants argue that they would suf-

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fer “plain legal prejudice” if the case were dismissed without prejudice given the time and expense they have already incurred and the
threat of future litigation. Id. at Pg ID 127-29. If, however, the
Court dismisses the case without prejudice, Defendants request
that Plaintiffs be ordered to pay Defendants attorneys’ fees from
this action should Plaintiffs re-file the case in the future. Id. at Pg
ID 129-30.
III. Standard of Review
A court may dismiss an action “at the plaintiff’s request” and “on
terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). A
dismissal under Rule 41(a)(2) is without prejudice unless the court
states otherwise. Id. And it is generally appropriate unless the nonmoving party—here Defendants—can show they will suffer “plain
legal prejudice.” Grover by Grover v. Eli Lilly and Co., 33 F.3d 716,
718 (6th Cir. 1993).
Courts consider four factors in determining whether this plain
legal prejudice will result from a dismissal without prejudice: 1) defendant’s effort and expenses preparing for trial; 2) the degree of
plaintiff’s excessive delay or lack of diligence; 3) insufficient explanation for the need to take a dismissal; and 4) whether defendant
has filed a motion for summary judgment. Id.
Courts have broad discretion in evaluating each of the four
Grover factors and no single factor is dispositive. Rosenthal v.
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Bridgestone/Firestone, Inc., 217 F. App’x 498, 502 (6th Cir. 2007).
Additionally, Plaintiffs do not have to show that all four factors
weigh in their favor to prevail on a motion for dismissal without
prejudice. Id. at 503 (“The factors are simply a guide for the trial
judge in whom the discretion ultimately rests”)(quoting Kovalic v.
DEC Intern., Inc., 855 F.2d 471, 474 (7th Cir. 1988))(internal quotations omitted).
Finally, “the mere prospect of a second lawsuit,” is not sufficient
to show plain legal prejudice. Id.; see also e.g., Carr CSL Plasma,
Inc., No. 14-cv-2267-JTF-cgc, 2016 WL 12805769 at *1 (W.D. Tenn.
Aug. 17, 2015)(“Generally, courts approve such dismissals [without
prejudice] unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit”)(citing 9 C.
Wright & A. Miller, Federal Practice and Procedure §2363 at 165
(1971)); see also 9 C. Wright & A. Miller, Federal Practice and Procedure §2364 (2017)(same).
Rather, plain legal prejudice results where dismissal without
prejudice would “strip a defendant of an absolute defense,” or where
“the law clearly dictates a result for the defendant.” Rosenthal v.
Bridgestone/Firestone, Inc., 217 F. App’x 498, 502 (6th Cir.
2007)(citing Grover, 33 F.3d at 718). In both of these instances subjecting defendants to the threat of future liability—by dismissing a

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case without prejudice—where they had already proven they were
not liable would be unfair. Id.
IV.

Analysis

Because both parties now seek to dismiss this case, Defendants’
Motion to Dismiss for Failure to Prosecute, Dkt. 15, and their Motion to Strike or in the Alternative, for Permission to File a Reply,
Dkt. 20, are DENIED as moot. The remaining issues are 1) whether
to grant the dismissal without prejudice; and 2) if the dismissal is
without prejudice, whether Defendants should receive attorneys’
fees for their time spent defending against this action in the event
that Plaintiffs re-file this case. For the reasons discussed below,
Plaintiffs’ Motion to Dismiss, Dkt. 18, is GRANTED without prejudice and Plaintiffs will not be required to pay Defendants’ attorneys’ fees at this time.
i. Dismissal Without Prejudice
District courts have broad discretion to dismiss cases without
prejudice under Rule 41(a)(2). Bridgeport Music, Inc. v. UniversalMCA Music Pub., Inc., 583 F.39 948, 953 (6th Cir. 2009). Defendants have not shown, on balance, that under the four Grover factors
they will suffer plain legal prejudice as a result of a dismissal without prejudice.
a) Defendants’ Time and Expense

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Courts have found plain legal prejudice where defendants have
been served with and provided discovery, scheduled depositions at
which Plaintiffs failed to appear, filed summary judgment motions, and prepared for trial. Compare, Rast v. City of Pigeon
Forge, No. 3:10-CV-52, 2011 WL 884041, at *3 (E.D. Tenn. Mar.
11, 2011)(both parties participated in and completed discovery and
defendant had attempted to depose plaintiff and filed a summary
judgment motion), with Allen v. Davidson Transit Organization,
No. 3:08-0273, 2009 WL 5170206, at *2 (defendant had engaged in
“some discovery,” but had not filed a summary judgment motion or
done any specific trial preparation).
Defendants’ expenditures in this case have been comparatively
minimal. Without offering specifics in terms of hours or amounts,
Defendants argue they have spent significant time and money
drafting and filing three, virtually identical proposed case management plans; drafting and filing three short motions with similar content; and serving their initial requests for production, interrogatories, and requests for admission on Plaintiffs a few weeks
before Plaintiffs moved to voluntarily dismiss this case. See Dkt.
21 at Pg ID 127. As Defendants acknowledged, they have not yet
been served with any discovery and have therefore not incurred
any time or expense responding to those requests. Dkt. 20-1 at Pg
ID 119. At the time Defendants filed their opposition to Plaintiffs’
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Motion to Dismiss on June 22, 2017, this case had been before the
Court for less than a year. Moreover, Defendants have not yet
filed a summary judgment motion.
Defendants’ relatively limited litigation activity does not support a finding of plain legal prejudice at this time.
b) Plaintiffs’ lack of diligence in pursuing this action
The record shows that Plaintiffs have failed to propose scheduling dates, appear at the Initial Case Management Conference, and
timely respond to Defendants’ Motion to Dismiss. Their lack of diligence in prosecuting this case is unprofessional and weighs in favor of dismissing the case with prejudice. But, as noted above, a
single Grover factor is not dispositive by itself; particularly where
the remaining three factors are unsupported and Defendants’ argument for plain legal prejudice rests almost exclusively on the possibility of a future lawsuit.
c) Sufficiency of the justification for dismissal
Plaintiffs’ assertion that they can no longer afford to proceed
with this litigation is a sufficient explanation for requesting dismissal. See Smith v. Davidson Transit Organization, No. 3:08-0271,
2009 WL 6170205, at *1 (M.D. Tenn. Dec. 15, 2009)(plaintiff’s justification that she could not “continue to pursue this action given
its increasing costs versus potential outcome” was sufficient).

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Contrary to Defendants’ argument that Plaintiffs must provide
“facts” that show they cannot afford to pursue this suit, Dkt. 21 at
Pg ID 129, Plaintiffs need only provide “some logical justification”
for requesting dismissal. Carr CSL Plasma, Inc., 2015 WL
12805769, at *3 (plaintiff’s justification that she needed to reevaluate her trial strategy was sufficient).
Plaintiffs’ justification for requesting dismissal is therefore
sufficient and supports granting their motion without prejudice.
d) Pending motions for summary judgment
Defendants have not yet filed a summary judgment motion in
this case. This factor does not support a finding of plain legal prejudice and therefore weighs in favor of granting Plaintiffs’ motion to
dismiss without prejudice.
Because Grover factors one, three, and four, all weigh in favor
of Plaintiffs, and because Defendants’ primary concern appears to
be avoiding a second lawsuit—which alone is not a proper basis for
requiring dismissal with prejudice—the Court finds that dismissing
this case without prejudice will not result in “plain legal prejudice”
to Defendants, and will therefore grant Plaintiffs’ Rule 41(a)(2) motion. Dkt. 18.
ii. Defendants’ Attorneys’ Fees
Defendants alternatively request that the Court condition its
dismissal on Plaintiffs paying Defendants’ attorneys’ fees from this
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action if Plaintiffs ever re-file this case. Dkt. 21, Pg. ID 130. District
courts enjoy broad discretion in deciding whether to attach conditions to a voluntary dismissal without prejudice under Rule
41(a)(2). Duffy v. Ford Motor Co., 218 F.3d 623, 633 (6th Cir. 2000).
There is no requirement, however, that courts order the party
requesting dismissal under Rule 41(a)(2) to pay the other party’s
costs and fees as a condition of that dismissal. Indeed this Circuit
has “expressly rejected the contention that the payment of defense
costs is universally required for voluntary dismissal under Rule
41(a)(2).” Bridgeport Music, 583 F.3d at 954 (district court did not
abuse its discretion in denying defendants’ requests for attorneys’
fees from the twenty cases plaintiffs dismissed against them).
The circumstances in Orix Financial Serv’s, Inc. v. Interstate
Capital Corp., No. 3:05-0538, 2006 WL 229047, at *1 (M.D. Tenn.
Jan. 27, 2006), attached to but not discussed in Defendants’ opposition to Plaintiffs’ motion to dismiss, are quite different from those
before the Court. There, the plaintiff moved to voluntarily dismiss
its suit after discovering it was time-barred in federal court and
openly expressed its intent to refile the action immediately in a
state court with a more generous statute of limitations. Id. The
court granted the motion to dismiss without prejudice. Id. at *4. But
given the plaintiff’s clear “miscue” of filing a time-barred suit, and

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the immediate prospect of its second, duplicative suit, the court conditioned that dismissal on payment of defendants’ attorneys’ fees.
Id.
Here, Plaintiffs have given no indication they intend to immediately refile this matter in another court. Indeed, the record suggests
that it is unlikely the case will be refiled because Plaintiffs have
represented to the Court that they currently do not have the resources to pursue it.
Moreover, there is no indication that Plaintiffs purposefully delayed bringing this motion to dismiss, or that the defense of this
matter has imposed substantial costs on Defendants. See Price v.
Biomet Microfixation, LLC, No. 1:14-CV-222, 2015 WL 58774, at *
3 (E.D. Tenn. Jan. 5, 2015) (refusing to condition dismissal on a fee
award without evidence that plaintiffs had acted in bad faith, delayed their motion to dismiss, or that defendants had “incurred substantial expense in defending the case”); see also Malibu Media,
LLC v. Ricupero, No. 16-36268, 2017 WL 370090 at *6 (6th Cir.
Aug. 28, 2017)(plaintiff had not brought the action “solely for the
purpose of harassing, embarrassing, or abusing” defendant, nor attempted to increase defendants’ costs through delay, and thus
should not be required to pay defendants’ attorneys’ fees as a condition of voluntary dismissal).

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In the event Plaintiffs refile this matter, the court will entertain
any request for costs associated with this action under Fed. R. Civ.
P. 41(d).1 See Noel v. Guerrero, 479 F. App’x 666, 670 (6th Cir.
2012)(noting Rule 41(d) protected defendants from covering duplicative litigation costs in a second lawsuit after dismissal without
prejudice of the first).
Rule 41(d) provides:
If a plaintiff who previously dismissed an action in any court
files and action based on or including the same claim against
the same defendant, the court
1) may order the plaintiff to pay all or part of the costs of
that previous action; and
2) may stay the proceedings until the plaintiff has complied.

Given that this litigation is one year old, has involved minimal
motions practice and virtually no discovery, and given that Defendants retain the option of recovering their costs in the event Plaintiff
refiles, the Court will exercise its discretion and deny Defendants’
request to condition the dismissal on a requirement that Plaintiffs
pay Defendants’ attorneys’ fees if they ever re-file this case. Should

The Sixth Circuit only permits parties to recover costs from previous litigation, not attorneys’ fees. Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 875
(6th Cir. 2000)(“[A]ttorneys’ fees are not available under Rule 41(d). The reason is simple—the rule does not explicitly provide for them”).
1

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Plaintiffs seek to refile this matter—after imposing costs on Defendants only to voluntarily dismiss—the Court would entertain a
motion to recover the costs of this action at that time.
V.

Conclusion

For the foregoing reasons, Plaintiffs’ Motion to Dismiss, Dkt. 18,
is GRANTED and the case is dismissed without prejudice. Defendants’ Motion to Dismiss for Failure to Prosecute, Dkt. 15, and their
Motion to Strike or in the Alternative, for Permission to File a Reply, Dkt. 20, are DENIED as moot.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
SITTING BY SPECIAL DESIGNATION
Dated: September 21, 2017
Certificate of Service
I hereby certify that this Order was electronically submitted
on September 21, 2017, using the CM/ECF system, which will
send notification to each party.

s/A. Chubb
Case Manager

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