Carter v. Mauller
Filing
67
MEMORANDUM OPINION AND ORDER: Based on the findings herein, the Court does hereby ORDER that Plaintiff's 64 MOTION to Dismiss Action be GRANTED and ORDERS that Count I be DISMISSED without prejudice. Signed by Judge Irene C. Berger on 08/20/2012. (cc: attys; any unrepresented party) (msa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
TAMMY L. CARTER,
Plaintiff,
v.
CIVIL ACTION NO. 5:11-cv-00626
FRANKIE E. MAULLER and
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendants.
MEMORANDUM OPINION AND ORDER
The Court has reviewed Plaintiff’s Motion to Dismiss Action (Document 64) together with
Defendant State Farm Mutual Automobile Insurance Company’s (“State Farm”) response
(Document 65) and Plaintiff’s reply (Document 66).
Plaintiff, Tammy Carter, moves to
voluntarily dismiss her Complaint pursuant to Rule 41(a)(2) of the Federal Rules of Civil
Procedure. In support of this Motion, Plaintiff argues Counts II and III (underinsured motorist
claim) were settled by mediation on July 10, 2012. (Document 64 ¶ 3.) Plaintiff argues Count IV
(declaratory judgment) was rendered moot because State Farm did not rely upon the
non-duplication of recovery provision when it tendered the policy limits at mediation. Plaintiff
seeks to dismiss Count I (breach of contract) without prejudice.
In response, State Farm agrees that Counts II, III and IV should be dismissed with
prejudice, but objects to the language used by Plaintiff’s proposed Order of Dismissal (Document
64-1). To the extent the parties disagree with the language that should be used to dismiss Counts
II, III and IV, the Court will not consider such arguments and enter dismissal of such counts
exactly as it appears in the previously filed stipulation of dismissal of those Counts. (See
Document 62.) Thus, the Court need only address whether Plaintiff is entitled to have Count I
dismissed without prejudice. State Farm objects to the dismissal of Count I without prejudice and
alternatively submits that such claim should be dismissed with prejudice.
Rule 41(a)(2) states that “[e]xcept as provided in Rule 41(a)(1), an action may be dismissed
at the plaintiff's request only by court order, on terms that the court considers proper. . . . Unless
the order states otherwise, a dismissal under this paragraph (2) is without prejudice.” (emphasis
added.) Under Rule 41(a)(2), the Court is to freely allow “voluntary dismissals unless the parties
will be unfairly prejudiced.” Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987). “A
plaintiff's motion under Rule 41(a)(2) should not be denied absent substantial prejudice to the
defendant.” Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986). It is clear that
“substantial prejudice to the defendant does not result from the mere possibility that a second
lawsuit may be filed, but rather, the prejudice incurred must be actual legal prejudice.” Vosburgh
v. Indem. Ins. Co. of N. Am., 217 F.R.D. 384, 386 (S.D.W. Va. 2003). In consideration of whether
a defendant will suffer actual legal prejudice, the Court considers the following factors: (1) the
opposing party's effort and expense in preparing for trial; (2) excessive delay or lack of diligence
on the part of the movant; (3) insufficient explanation of the need for a dismissal; and (4) the
present stage of the litigation; i.e., whether a motion for summary judgment is pending. (Id.)
With little elaboration, State Farm contends it “would suffer prejudice if the voluntary
dismissal without prejudice is granted given the present status of this litigation.” (Document 65 at
9.) State Farm argues Plaintiff only sought voluntary dismissal after the close of discovery and
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just months before the scheduled trial. (Id.) State Farm also argues it exhausted the per person
bodily underinsured motorist coverage limit by July 17, 2012, and expended time and incurred
expenses defending this action. (Id. at 9-10.) State Farm asks the Court to dismiss Count I with
prejudice because “plaintiff had adequate opportunity to conduct discovery on all Counts of her
Complaint and has now received the limits of the . . . medical payment coverage and underinsured
motorist coverage . . . [.]” (Id. at 10.) With respect to the Vosburgh factors, in reply, Plaintiff
argues State Farm has not incurred additional expense with respect to Count I because the
discovery focused primarily on the underinsured claim and not the breach of contract claim.
(Document 66 at 3.) Next, Plaintiff argues she diligently pursued this case and acted without
delay. (Id.) Further, Plaintiff argues once State Farm finally tendered the coverage limits after
mediation, Plaintiff decided to voluntarily dismiss her breach of contract claim (Count I). (Id. at
3-4.) Additionally, Plaintiff argues the Defendant is not prejudiced by the current stage of
litigation or any pending motions. Instead, “Plaintiff is simply going to pursue her bad faith and
UTPA case against State Farm and the adjustors in a separate lawsuit.” (Id. at 4.) In conclusion,
Plaintiff argues “State Farm cannot demonstrate ‘substantial prejudice’ to justify a denial of the
motion to dismiss under Rule 41(a)(2).”
After careful consideration of the aforementioned pleadings, the Court finds Defendant
fails to demonstrate that it would be substantially prejudiced by a dismissal of Count I without
prejudice. State Farm does not have any pending motions and only recently tendered the
insurance policy limits to Plaintiff. Further, it appears Plaintiff has diligently prosecuted her
claims without undue delay.
Finally, State Farm is not legally, much less substantially,
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prejudiced by the prospect of facing a second law suit. Accordingly, the Court finds it proper to
dismiss Count I without prejudice pursuant to Rule 41(a)(2).
Wherefore, based on the findings herein, the Court does hereby ORDER that Plaintiff’s
Motion to Dismiss Action (Document 64) be GRANTED and ORDERS that Count I be
DISMISSED without prejudice.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any
unrepresented party.
ENTER:
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August 20, 2012
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