McCoy v. Delhaize America, Inc.
Filing
10
OPINION AND ORDER - the Court GRANTS the plaintiff's motion for voluntary dismissal and this action is DISMISSED without prejudice, subject to the following conditions: (1) the plaintiff shall pay any taxable costs incurred by the defendant in t his action up until the date of this Order; (2) the plaintiff shall agree to the use of discovery materials from this case in any subsequent court proceedings related to these same claims; and (3) the plaintiff shall not at any time, in any court, re quest more than $75,000 in damages for this incident from this defendant, unless this plaintiff agrees that any such action be brought in federal court or be removable to federal court from a state court. If the plaintiff fails to satisfy these conditions, the dismissal shall be with prejudice. See Choice Hotels Int'l. Inc. v. Goodwin & Boone, 11 F.3d 469,472 (4th Cir. 1993) ("[A] district courtmust be explicit and clear in specifying that failure to meetits conditions will result in prejudicial dismissal...."). The defendant is DIRECTED to file a bill of costs with the time period specified by Local Civil Rule 54(D). Signed by District Judge Robert G. Doumar on 10/10/12 and filed on 10/11/12. (jcow, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA!
r OCT 1
1»12J
Norfolk Division
LISA MCCOY,
Plaintiff,
Civil No. 2:12cv415
v.
DELHAIZE AMERICA, INC.,
trading as BOTTOM DOLLAR FOOD,
Defendant
OPINION AND ORDER
Thismatter is presently before the Court upon plaintiffLisaMcCoy's Motion forVoluntary
Dismissal of her complaint in accordance with Rule 41 of the Federal Rules of Civil Procedure.
ECF No. 7. In response, defendant Delhaize America, Inc., has filed a briefin opposition to the
motion. ECFNo. 9. For the reasons set forth herein, the Court GRANTS the plaintiffs motionand
DISMISSES the case without prejudice, subject to certain conditions set forth herein.
I.
BACKGROUND
The plaintiff filed her complaint in this matter inthe Circuit Court ofNorfolk, Virginia on
July 6,2012, and also issued written discovery to the defendant on the same day. The defendant is a
North Carolina corporation that owns and operates Food Lion brand stores, including the subject
Bottom Dollar FoodstorelocatedinNorfolk, Virginia. Mem. in Opp'n ^ 1. The plaintiff, a resident
ofVirginia, alleges inher complaint that she purchased spoiled crab salad from Bottom Dollar onor
about November 3,2011, and that upon consumption ofthe salad, she became ill because thesalad
was sold beyond the expiration date. Compl. HI 1, 3. She alleges that the defendant negligently
allowed the crab salad to expire and become unfit for human consumption, and that the defendant
breached its warranty by selling a food item with defects and that was not safe for human
consumption. Id. fflf 6-10. As a result of her illness, the plaintiff alleges that she suffered great
mentalanguish and incurred medical bills and expenses. Id f 10. She seeks compensatory damages
of $100,000 plus costs. Id. at 3.
On July 25,2012, the defendant filed an answer to the complaint in state court. On July 27,
2012, the defendant timely removed this matter to this Court pursuant to 28 U.S.C. § 1441, citing
this Court's diversityjurisdiction pursuant to 28 U.S.C. § 1332. That same day, the Court entered a
Rule 26(f) Pretrial Order, scheduling an initial pretrial conference and permitting the parties to
initiate discovery.1
Five days later, onAugust 2,2012, the plaintifffiled the instant motion, but she did not file a
brief insupport. See Local Civ. R. 7(F) ("All motions .. . shall be accompanied by a written brief
setting forth a concise statements ofthe facts and supporting reasons, along with a citation ofthe
authorities upon which the movant relies."). On August 13, 2012, the defendant filed its brief in
opposition. The plaintiff has not filed arebuttal brief. The motion is now ripe for decision on the
papers. See Local Civ. R. 7(J).
II.
ANALYSIS
Under Rule 41 (a)(1), aplaintiffmay voluntarily dismiss an action without acourt order only
by filing anotice ofdismissal before an answer or amotion for summary judgment has been served
by the opposing party, or by stipulation ofdismissal signed by all parties who have appeared. Fed.
R. Civ. P. 41(a)(1). Inthis case, the defendant has filed an answer and ithas not signed a stipulation
of dismissal.
When voluntary dismissal under Rule 41(a)(1) is not available, voluntary dismissal is still
available to the plaintiff under Rule 41(a)(2), which provides that, "[e]xcept as provided in Rule
1The initial pretrial conference was subsequently deferred inlight ofthe plaintiffs motion
for voluntary dismissal.
41(a)(1), an action may be dismissed at the plaintiffs request only by court order, on terms that the
court considers proper." Fed. R. Civ. P. 41(a)(2). "The purpose of Rule 41(a)(2) is freely to allow
voluntary dismissals unless the parties will be unfairly prejudiced." Davis v. USX Corp., 819 F.2d
1270, 1273 (4th Cir. 1987). "Typically, such a motion is granted unless there is 'substantial
prejudice' or 'plain legal prejudice' to the defendant." Teck Gen. P'ship v. Crown Cent. Petroleum
Corp., 28 F. Supp. 2d 989,991 (E.D. Va. 1998). In considering a motion forvoluntary dismissal, the
Court "mustfocus primarily on protecting the interests of the defendant." Davis, 819F.2dat 1273.
TheFourth Circuit has identified fourgeneral factors that shouldbe considered indeciding a
Rule 41(a)(2) motion:
(1) the opposing party's effort and expense in preparing for trial; (2)
excessive delay or lack ofdiligence onthe part ofthemovant; (3) insufficient
explanation of the need for a dismissal; and (4) the present stage of the
litigation, Le^., whether a motion for summary judgment is pending.
Teck, 28 F. Supp. 2d at 991 (quoting Gross v. Spies, 133 F.3d 914,1998 WL 8006, at *5 (4th Cir.
1998) (unpublished per curiam table decision)). The Court may also consider any additional factors
itfinds relevant under the particular circumstances ofthis specific case. Teck, 28 F. Supp. 2d at991
n.5 (citing Gross). "Neither the mere prospect ofasecond lawsuit, nor the possibility that plaintiff
will gain a tactical advantage, such as that which would be gained by refiling in state court, are
sufficient prejudice to deny a motion for voluntary dismissal." Teck, 28 F. Supp. 2d at 991 (citing
Gross. 1998 WL 8006, at *5, and Davis. 819 F.2d at 1275).
First, the Court notes that the plaintiff has provided noexplanation whatsoever ofthe need
fora dismissal. Her one-sentence motion simply requests voluntary dismissal pursuant toRule 41 of
the Federal Rules of Civil Procedure, without setting forth any reasons in support of her motion.
Despite the requirements ofLocal Civil Rule 7(F), she did not file a brief in support, nor did she
avail herself of the opportunity to file a brief in rebuttal to the defendant's opposition brief. This
factor weighs against the plaintiff.
But the remaining factors identified by circuit precedent weigh in favor of granting the
plaintiffs motion for voluntary dismissal. The plaintifffiled her motion for a voluntary dismissal a
mere five days after the case was removed to federal court. In doing so, she has acted diligently and
without excessivedelay. See Teck, 28 F. Supp.2dat 992 ("[C]ounsel should have promptly moved
for a non-prejudicial dismissal soon after the case was removed."). Other than preparingand filing
removal papers and a perfunctory, four-page brief in opposition to the plaintiffs motion for
voluntary dismissal, the defendant has identified no particular effort or expense incurred in
connection with this action. This case is at the very earliest stages of litigation—little or no
discovery hastaken place, andthere areno motions for summary judgment pending. Indeed, other
than the instant motion, the docket reflects little litigation activity in this case at all.
The defendant objects thatpermitting the plaintifftovoluntarily dismiss this action will allow
her to re-file in state court with a demand for damages below $75,000, thus avoiding federal
diversity jurisdiction. See 28 U.S.C. § 1332(a). But the mere prospect that federal diversity
jurisdiction might be avoided in a second lawsuit is not sufficient basis for denying a motion for
voluntary dismissal. See Davis, 819 F.2d at 1275; Hunter v. Surgitek/Med. Eng'gCorp., No. S9256M, 1992 U.S. Dist. LEXIS 9696, at *4-*5 (N.D. Ind. May 29, 1992) ("Dismissals without
prejudice are granted inremoved actions sothata plaintiffmay proceed with the litigation ina state
court,even if the intentionor result is to defeatfederal diversity jurisdiction."). "[I]ncasesinvolving
the scopeof state law,courtsshould readilyapprove of dismissal when a plaintiffwishesto pursue a
claim in state court." Davis, 819 F.2d at 1275.
The defendant further objects that litigating the plaintiffs claims in state court would cause
prejudice to the defendant because litigants in Virginia circuit court are not permitted to rely on
deposition testimony in moving for summary judgment, see Va. Sup. Ct. R. 3:20, and discovery is
generally not permitted at all in Virginia general district court, see Capital Tours & Transp.. Inc. v.
Va. Dep'tofMotor Vehicles, 41 Va. Cir. 285,288 (1997).2 The defendant also notes that, inits own
experience, jury verdicts in Virginia circuit courts, especially in Norfolk, tend to be more plaintiff-
friendly than in federal court. But the possibility that the plaintiff might gain a tactical advantage
over the defendant in future litigation likewise is not sufficient basis for denying a motion for
voluntary dismissal. See Davis. 819 F.2d at 1275; cf Dobbs v. JBC of Norfolk. VA, Inc.. 544 F.
Supp. 2d 496, 501 n.13 (E.D. Va. 2008) (defendant not unduly prejudiced by inability to use two
discovery depositions to support a renewed motion for summaryjudgment onremand tostate court).
Asnoted above, beyond theinterrogatories served bythe plaintiffwhile this case was still in
Virginia circuit court, little orno discovery has been conducted inthis case, and no depositions have
been taken—at least none were noted by thedefendant in its opposition brief. Any slight prejudice
that might be caused to the defendant by dismissal of this action can be cured by imposition of
conditions such as the payment by the plaintiffofany taxable costs incurred by the defendant inthis
action and the plaintiffs agreement to the use federal discovery materials in any subsequent state
court proceedings. See Davis, 819 F.2d at 1276.
2Thedefendant suggests thattheplaintiffmight re-file herclaims inVirginia general district
court with a demand for damages of $25,000 or less to take advantage of the unavailability of
discovery in Virginia general district court. The Virginia general district courts have exclusive
jurisdiction over claims for damages of up to $4,500, and concurrent jurisdiction over claims for
damages of up to $25,000. See generally Va. Code § 16.1-77(1).
III.
CONCLUSION
Based on the foregoing, the Court finds that granting the plaintiffs motion for voluntary
dismissal of this action without prejudice would not cause substantial prejudice to the defendant.
Therefore, the Court GRANTS the plaintiffs motion for voluntary dismissal and this action is
DISMISSED without prejudice, subject to the following conditions: (1) the plaintiff shall pay any
taxable costs incurred by the defendant in this action up until the date ofthis Order; (2) the plaintiff
shall agree to the use of discovery materials from this case in any subsequent court proceedings
related to these same claims; and (3) the plaintiff shall not at any time, in any court, request more
than $75,000 in damages for this incident from this defendant, unless this plaintiff agrees that any
such action be brought in federal court or be removable to federal court from a state court.
If the plaintiff fails to satisfy these conditions, the dismissal shall be with prejudice. See
Choice Hotels Int'l. Inc. v. Goodwin & Boone, 11 F.3d 469,472 (4th Cir. 1993) ("[A] district court
must be explicit and clear in specifying that failure to meet its conditions will result in prejudicial
dismissal....").
The defendant is DIRECTED to file a bill of costs with the time period specified by Local
Civil Rule 54(D).
IT IS SO ORDERED.
October ^,2012
Norfolk, Virginia
Robert G. Do
Senior Unito
ct Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?