United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO
VOLUNTARILY DISMISS (ECF NO. 32) AND DENYING AS MOOT
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO.
V. PARKER U.S. DISTRICT JUDGE
lawsuit arises from Plaintiffs' purchase of a
recreational vehicle from Defendant General RV Center, Inc.
(“General RV”) for which financing was provided
by Defendant Ally Financial (“Ally”). After the
case was transferred to this District from the Northern
District of Ohio, Ally filed a motion to dismiss. In
response, Plaintiffs stipulated to the dismissal of their
claims against Ally. (ECF No. 20.) After General RV filed an
Answer to Plaintiffs' Complaint on November 9, 2016, this
Court set a scheduling conference to establish inter
alia deadlines for discovery and dispositive motions.
Before that conference, however, General RV filed a motion
for summary judgment. (ECF No. 23.) In response to the
motion, Plaintiffs filed a motion to voluntarily dismiss
their claims with prejudice against General RV. (ECF No. 32.)
General RV opposes the motion, only to the extent that it
wants any dismissal conditioned on an award of costs and
fees. (ECF No. 33.)
41(a)(2) of the Federal Rules of Civil Procedure requires a
plaintiff to seek an order of the court or stipulation of the
opposing party to voluntarily dismiss an action where, as is
the case here, the opposing party has filed an answer or
motion for summary judgment. Fed.R.Civ.P. 41(a)(2). The
decision whether to dismiss a complaint under Rule 41(a)(2)
lies within the sound discretion of the court. Grover by
Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir.
1994) (citing Banque de Depots v. Nat'l Bank of
Detroit, 491 F.2d 753, 757 (6th Cir. 1974)). “[I]t
is an abuse of discretion for a [c]ourt to refuse to grant
such a dismissal with prejudice.” Bridgeport Music,
Inc. v. Universal-MCA Music Publ'g, Inc., 345
F.Supp.2d 836, 841 (M.D. Tenn. 2004) (citing Smoot v.
Fox, 340 F.2d 301, 302-03 (6th Cir. 1964)).
Nevertheless, Rule 41(a)(2) authorizes courts to impose
“terms that the court considers proper” when
granting a plaintiff's motion to voluntarily dismiss.
the factors considered in determining whether to award
defense costs under Rule 41(a)(2) are:
“(1) whether the plaintiff acted in good faith in
bringing and prosecuting the litigation; (2) whether the
defendant incurred substantial expenses in defending the
action; (3) whether the plaintiff delayed in bringing the
motion to dismiss; and (4) whether the work performed can be
used in a subsequently filed action.”
Seals v. Scutt, No. 10-cv-15054, 2011 WL 1793331, at
*2 (E.D. Mich. Apr. 20, 2011) (quoting Yetman v. CSX
Transp., Inc., No. 08-1130, 2009 WL 35351, at *3 (W.D.
Mich. Jan.6, 2009) (citations omitted). For the following
reasons, these factors do not weigh in favor of an award of
costs to General RV.
were represented by counsel different from their current
counsel when they filed their Complaint in this matter.
Plaintiffs state that they now are moving to dismiss their
claims against General RV because their current counsel has
determined that some of those claims have no merit under
Michigan law and that they lack a sufficient legal basis to
counter the arguments General RV asserts in its summary
judgment motion with respect to their remaining claims. There
does not appear to have been any delay or lack of diligence
on the part of Plaintiffs in prosecuting the action. It also
does not appear that General RV has expended significant
resources to defending this action. In fact, General RV
represents in its dispositive motion that no discovery is
needed to be conducted to seek dismissal of Plaintiffs'
claims. (ECF No. 23 at Pg ID 212.)
award of attorney's fees under Rule 41(a)(2) is generally
only appropriate when a lawsuit is voluntarily dismissed
without prejudice. Colombrito v. Kelly, 764
F.2d 122, 133 (2d Cir. 1985); see also Spar Gas, Inc. v.
AP Propane, Inc., No. 91-6040, 1992 WL 172129, at *2
(6th Cir. July 22, 1992) (quoting Smoot v.
Fox, 353 F.2d 830, 933 (6th Cir. 1965) (“Smoot
II”) (The rule in this circuit has long been that
attorneys' fees are not awardable on a dismissal with
prejudice, but are permitted against the dismissing party on
a dismissal without prejudice …”). “The
purpose of such awards is … to reimburse the defendant
for the litigation costs incurred, in view of the risk (often
the certainty) faced by the defendant that the same suit will
be refiled and will impose duplicative expenses upon
him.” Colombrito, 764 F.2d at 133; see
also Smoot II, 353 F.2d at 833. “The reason for
denying a fee award upon dismissal of claims with prejudice
is simply that the defendant, unlike a defendant against whom
a claim has been dismissed without prejudice, has been freed
of the risk of relitigation of the issues just as if the case
had been adjudicated in his favor after a trial, in which
event (absent statutory authorization) the American Rule
would preclude such an award.” Colombrito, 764
F.2d at 134. As such, an award of attorney's fees
following a dismissal with prejudice must be pursuant to
Federal Rule of Civil Procedure 11 (as sanctions) or
independent statutory authority. Degussa Admixtures, Inc.
v. Burnett, 471 F.Supp.2d 848, 853 (W.D. Mich. 2007)
(citing cases); Colombrito, 764 F.2d at 134
(“Several courts have held that a Rule 41(a)(2) award
of fees [when a lawsuit is dismissed with prejudice] is
appropriate only when there is independent statutory
authority for such an award. This Circuit has previously
assumed as much.” (citations omitted)). General RV does
not provide the Court with such a basis for an award of
attorney's fees in this case.
above reasons, IT IS ORDERED that Plaintiffs' motion to
voluntarily dismiss their Complaint with prejudice (ECF No.
33) is GRANTED;
FURTHER ORDERED that Defendant General RV Center, Inc.'s
motion for summary ...