Edomwande v. American Guarantee and Liability Insurance Company

Filing 6

Memorandum Opinion and Order: The court grants 5 Plaintiff's Notice to Withdraw, dismisses without prejudice this action, and denies as moot the 4 Opposed Motion to Deem Plaintiff Christopher Edomwande a Vexatious Litigant, Require Security from Plaintiff, and Dismiss Plaintiffs Claims with Prejudice in Absence of Security. (Ordered by Judge Sam A Lindsay on 7/16/2013) (jrr)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTOPHER EDOMWANDE,
Plaintiff,
v.
KIMBERLIE OLIVER, BRETT
JACKSON, and AMERICAN
GUARANTEE AND LIABILITY
INSURANCE COMPANY,
Defendants.

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Civil Action No. 3:13-CV-2579-L

MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s Notice to Withdraw[] (Doc. 5), filed July 15, 2013, and the
Opposed Motion to Deem Plaintiff Christopher Edomwande a Vexatious Litigant, Require Security
from Plaintiff, and Dismiss Plaintiff’s Claims with Prejudice in Absence of Security (Doc. 4), filed
by Defendant American Guarantee and Liability Insurance Company (“AGLIC”) on July 8, 2013.
Plaintiff indicates in his Notice to Withdraw that he seeks to voluntarily dismiss this action. After
considering Plaintiff’s Notice to Withdraw and AGLIC’s motion to deem Plaintiff as a vexatious
litigant, the record, and applicable law, the court sees no reason to delay in ruling on the foregoing
motions. For the reasons herein discussed, the court therefore grants Plaintiff’s Notice to Withdraw
(Doc. 5), dismisses without prejudice this action, and denies as moot the Opposed Motion to Deem
Plaintiff Christopher Edomwande a Vexatious Litigant, Require Security from Plaintiff, and Dismiss
Plaintiff’s Claims with Prejudice in Absence of Security (Doc. 4).

Memorandum Opinion and Order - Page 1

I.

Voluntary Dismissal Under Rule 41(a)
Federal Rule of Civil Procedure 41(a) permits a plaintiff to voluntarily dismiss an action

without a court order by: “(i) a notice of dismissal before the opposing party serves either an answer
or a motion fro summary judgment; or (ii) a stipulation of dismissal signed by all parties who have
appeared.” Fed. R. Civ. P. 41(a)(1)(A). “Unless the notice or stipulation states otherwise, dismissal
under is without prejudice.” Fed. R. Civ. P. 41(a)(1)(B).
Upon Plaintiff’s request, the court can also dismiss an action by court order on terms that the
court considers proper. Fed. R. Civ. P. 41(a)(2). Unless otherwise specified, dismissal under this
paragraph is without prejudice. Id. Ordinarily, a motion for voluntary dismissal “should be freely
granted unless the non-moving party will suffer some plain legal prejudice other than the mere
prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002)
(citation omitted). Legal prejudice may also exist if the nonmovant could lose a forum non
conveniens defense. Ikospentakis v. Thalassic S.S. Agency, 915 F.2d 176, 179 (5th Cir. 1990).
Finally, legal prejudice may exist if “a plaintiff fails to seek dismissal until a late stage of trial, after
the defendant has exerted significant time and effort.” Davis v. Huskipower Outdoor Equip. Co.,
936 F.2d 193, 199 (5th Cir. 1991). Whether legal prejudice exists under these circumstances is a
determination to be made by the court using its sound discretion. If the court determines that legal
prejudice exists, it may “refuse to grant a voluntary dismissal.” Id. (citations omitted). “[T]he mere
prospect of a second lawsuit is not enough prejudice to a defendant to warrant denial of a motion to
dismiss without prejudice.” United States ex rel. Doe v. Dow Chemical Co., 343 F.3d 325, 330 (5th
Cir. 2003).

Memorandum Opinion and Order - Page 2

II.

Discussion
AGLIC is the only defendant in this action to file an answer. Accordingly, under Rule

41(a)(1)(A), Plaintiff is free to voluntarily dismiss his action against Kimberlie Oliver and Brett
Jackson without a court order. The claims against Kimberlie Oliver and Brett Jackson are therefore
dismissed without prejudice.
Because AGLIC has filed an answer and Plaintiff’s Notice to Withdraw is not accompanied
by a stipulation of dismissal, the court treats Plaintiff’s Notice to Withdraw as to AGLIC as a request
for dismissal under Federal Rule of Civil Procedure 41(a)(2). The court concludes that AGLIC will
not suffer any legal prejudice if this case is voluntarily dismissed, as it was only recently filed and
removed to federal court on July 3, 2013. The court therefore grants Plaintiff’s Notice to Withdraw
(Doc. 5) and dismisses without prejudice this action against AGLIC; however, in light of AGLIC’s
pending motion to dismiss this action with prejudice and its contention that Plaintiff is a vexatious
litigant, the court orders that before any future case can be brought by Plaintiff against AGLIC
regarding the matters at issue, Plaintiff must first pay all of AGLIC’ reasonable costs of court
incurred in this case, which necessarily include all costs incurred at the state court level and
in this court.

The court denies as moot Opposed Motion to Deem Plaintiff Christopher

Edomwande a Vexatious Litigant, Require Security from Plaintiff, and Dismiss Plaintiff’s Claims
with Prejudice in Absence of Security (Doc. 4).
It is so ordered this 16th day of July, 2013.

________________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order - Page 3