Babin v. State Farm Mutual Automobile Insurance Company

Filing 11

MEMORANDUM OPINION AND ORDER granting 8 Opposed MOTION to Dismiss (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ALLISON MARIE BABIN,

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Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.

CIVIL ACTION NO. H-14-3524

MEMOlU\NDUM OPINION AND ORDER

Pending before the court is Plaintiff Allison Marie Babin's
Motion to Dismiss Under Rule 41

(Docket Entry No.8),

State

Insurance

Farm

Defendant's
Rule

41

Mutual

Automobile

Opposition

(Docket

Entry

to

Plaintiff's

No.9)

and

Company

Motion

to

to which

has

Dismiss

Defendant's

filed
Under

Supplemental

Opposition to Plaintiff's Motion to Dismiss Under Rule 41 (Docket
Entry No. 10).
Under Fed. R. Civ. P. 41(a) (2), a plaintiff has the right to
dismiss an action conditioned only on the sound discretion of the
court upon a showing that the defendant will not suffer legal harm.
Holiday Queen Land Corp. v. Baker, 489 F.2d 1031, 1032

(5th Cir.

1974); Durham v. Florida East Coast Railway Co., 385 F.2d 366 (5th
Cir.

1967).

'Legal harm'

to a defendant that will preclude a

plaintiff's voluntary dismissal must be "some plain legal prejudice
other than the mere prospect of a second law suit.

It is no bar to

dismissal

that

plaintiff

may

obtain

thereby."

Durham, 385 F.2d at 368

some

tactical

advantage

(citation omitted).

The only

legal harm alleged by defendant is the possibility that plaintiff
may "refile the case and get back into state court."
No.9, pp. 2 and 3)
will

preclude

a

(Docket Entry

Since that is not the type of legal harm that
plaintiff's

voluntary

dismissal,

and

since

plaintiff has filed her motion before the court has conducted the
initial pretrial and scheduling conference and before the parties
have commenced discovery,
motion should be granted.
Dismiss Under Rule 41

the court concludes that plaintiff's
Accordingly,

(Docket Entry No.8)

Plaintiff's Motion to
is GRANTED,

and this

action will be dismissed without prejudice.
SIGNED at Houston, Texas, on this the 7th day of April, 2015.

UNITED STATES DISTRICT JUDGE

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