Ballard v. Wells Fargo Bank NA et al

Filing 7

Memorandum Opinion and Order: Before the Court is Plaintiff's Notice of Dismissal of Complaint (doc. 6 ), which was filed on 5/6/2014 pursuant to Rule 41(a)(1)(A)(i). Fed. R. Civ. P. 41(a)(1)(A)(i). Accordingly, the Court shall construe P laintiff's Motion as a voluntary dismissal under 41(a)(2), which provides that "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." After carefully considering the pleadings, circumstances of the case, and the relevant law, the Court concludes that Plaintiff's motion should be GRANTED. Thus the Court cannot find plain legal prejudice with respect to any of the defendants, and ORDERS this case DISMISSED WITHOUT PREJUDICE. (Ordered by Judge Jane J Boyle on 6/9/2014) (axm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RONALD BALLARD,
Plaintiff,
v.
WELLS FARGO BANK, N.A., BANK
OF AMERICA, N.A., and AH4R I TX
DFW, LLC,
Defendants.

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§ CIVIL ACTION NO. 3:13-CV-4628-B
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MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Notice of Dismissal of Complaint (doc. 6), which was filed on
May 6, 2014 pursuant to Rule 41(a)(1)(A)(i). Fed. R. Civ. P. 41(a)(1)(A)(i). At the time Plaintiff
filed his Notice, only Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) had filed an answer (doc.
1-7). In addition, only Wells Fargo had filed a motion to dismiss (doc. 4). Some courts have “held
that certain pleadings which are neither an answer nor a motion for summary judgment will bar the
right to a voluntary dismissal by notice under Rule 41(a)(1).” Florists’ Mut. Ins. v. Ickes-Braun
Glasshouses, Inc., 474 F.2d 250, 253 (5th Cir. 1973). These cases have almost invariably “involved
proceedings which joined issue on the controversy or brought the court into consideration of the
merits of the controversy.” Id. Here, Wells Fargo’s motion is brought under Rule 12(b)(6) and invites
the Court to consider the merits of the case. Accordingly, the Court shall construe Plaintiff’s Motion
as a voluntary dismissal under 41(a)(2), which provides that “an action may be dismissed at the
plaintiff’s request only by court order, on terms that the court considers proper.” Fed. R. Civ. P.
41(a)(2).
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Voluntary dismissals should be granted freely, “but a plaintiff’s request will not be allowed
if the non-moving party will suffer some plain legal prejudice.” Harris v. Devon Energy Prod. Co.,
L.P., 500 F. App’x 267, 268 (5th Cir. 2012)(internal quotation marks omitted). Courts have found
plain legal prejudice when the plaintiff has moved to dismiss at a late stage of the case or sought to
avoid an imminent adverse ruling. Id. Often a combination of factors has been present. See Villanueva
v. Wells Fargo Bank, N.A., No. 3:11–CV–03951–BH, 2013 WL 1148643, at *2 (N.D. Tex. Mar. 5,
2013)(citing In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 628 F.3d 157, 163 (5th Cir. 2010);
U.S. ex rel. Doe v. Dow Chemical Co., 343 F.3d 325 (5th Cir. 2003); Davis v. Huskipower Outdoor
Equip. Corp., 936 F.2d 193, 199 (5th Cir. 1991); Hartford Acc. & Indem. Co. v. Costa Lines Cargo
Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990)).
After carefully considering the pleadings, circumstances of the case, and the relevant law,
the Court concludes that Plaintiff’s motion should be GRANTED. None of the defendants has
objected to the Notice, and there is no indication that the parties have exerted significant time and
effort in this matter. Thus the Court cannot find plain legal prejudice with respect to any of the
defendants, and ORDERS this case DISMISSED WITHOUT PREJUDICE.

SO ORDERED.
SIGNED: June 9, 2014.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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