United States District Court, D. Connecticut
RULING ON MOTION FOR VOLUNTARY DISMISSAL [Doc.
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
before the Court is a motion by self-represented plaintiff
Franklin Brown ("plaintiff") to voluntarily dismiss
this pending matter, pursuant to Rule 41(a) (2) of the
Federal Rules of Civil Procedure. [Doc. #104] . Defendant has
filed an opposition to the motion. [Doc. #106]. For the
reasons set forth below, plaintiff's motion is DENIED.
to Rule 41 of the Federal Rules of Civil Procedure, after
defendant has filed an answer and in the absence of a
stipulation, a plaintiff may voluntarily dismiss his case
"only by court order, on terms that the court considers
proper." Fed.R.Civ.P. 41(a)(2). Rule 41(a) further
provides that "[u]nless the order states otherwise, a
dismissal under this paragraph (2) is without
prejudice." Id. However, "[v]oluntary
dismissal without prejudice is  not a matter of
right." Zagano v. Fordham Univ., 900 F.2d 12,
14 (2d Cir. 1990) . "The court has discretion to deny
voluntary withdrawal." Brown v. Nat'l
R.R. Passenger Corp., 293 F.R.D. 128, 130 (E.D.N.Y.
2013); see also Fed. Ins. Co. v. Speedboat Racing
Ltd., No. 3:12CV1480(CSH), - F.Supp.3d -, 2016 WL
4250222, at *17 (D. Conn. Aug. 9, 2016).
test for dismissal without prejudice involves consideration
of various factors[.]" Kwan v. Schlein, 634
F.3d 224, 230 (2d Cir. 2011). These factors include the
plaintiff's diligence in bringing the motion; any
"undue vexatiousness" on plaintiff's part; the
extent to which the suit has progressed, including
the defendant's effort and expense in preparation for
trial; the duplicative expense of relitigation; and the
adequacy of plaintiff's explanation for the need to
Zagano, 900 F.2d at 14 (collecting cases). "The
extent to which a suit has progressed is considered by many
courts in the Second Circuit to be of primary importance.
This is so in part because the length of time which an action
has been pending goes to the extent which a defendant will be
prejudiced by a dismissal without prejudice." Roh v.
Devack, No. 3:07CV1901(CSH), 2011 WL 1363789, at *3 (D.
Conn. Apr. 11, 2011) (quotation marks and citation omitted).
No single factor is dispositive, however. See, e.g.,
Soul Circus, Inc. v. Trevanna Entm't, Inc., 249
F.R.D. 109, 111 (S.D.N.Y. 2008) ("To be sure, this
action has not progressed very far, and there would be little
to relitigate. But plaintiff's failure to offer a
persuasive reason for dismissal without prejudice, the
vexatious nature of its actions, its attempt to avoid a
prompt resolution in a forum no longer to its liking, and its
failure to seek such a dismissal earlier all weigh in favor
of the defendants.").
seeks to voluntarily dismiss this case, claiming that he
"filed the case wrong and no longer want[s] to
proceed." Doc. #104 at 1. His motion requests dismissal,
conditioned on an assurance or order that said dismissal
would not "bar" his other pending action, case
number 3:16CV01180(JCH), Franklin Brown v. Fredrick
Dirga, et al. (hereinafter "16CV1180").
Id. Defendant opposes plaintiff's motion,
arguing that any dismissal of this matter should be
with prejudice, and should not dictate the outcome
of defendant's pending motion to dismiss in 16CV1180.
See Doc. #106 at 1.
consideration of the factors set forth above, the Court
denies plaintiff's motion to dismiss his case without
prejudice. This matter is far progressed. The case has been
pending for over a year, during which time plaintiff has
filed no fewer than fifteen motions necessitating responses
by defendant. During the course of the litigation, plaintiff
voluntarily dismissed defendant DelMauro from the action, and
the case has continued without him. Fact discovery is now
complete, and the deadline for the filing of dispositive
motions is imminent. Defendant would be unduly prejudiced by
a dismissal without prejudice at this stage in the
proceedings, especially considering that defendant would
incur significant duplicative expenses if required to
relitigate the matter.
the plaintiff has not proffered an adequate explanation for
his request to dismiss the case without prejudice. It appears
that plaintiff seeks to abandon the instant matter in order
to pursue his later-filed lawsuit, 16CV1180. Plaintiff's
complaint in 16CV1180 was commenced in state court on May 15,
2016, and removed by the defendants in that action on July
14, 2016. This case was filed on July 15, 2015, almost
exactly one year earlier. The claims alleged in 16CV1180
arise from the same set of facts as those that gave rise to
the instant matter.
the general rule that "where there are two competing
lawsuits, the first suit should have priority, absent the
showing of balance of convenience in favor of the second
action, or unless there are special circumstances which
justify giving priority to the second." Fort Howard
Paper Co. v. William D. Witter, Inc., 787 F.2d 784, 790
(2d Cir. 1986). "Simple dismissal of the second suit is
[a] common disposition because plaintiff [has] no right to
maintain two actions on the same subject in the same court,
against the same defendant at the same time." Curtis
v. Citibank, N.A., 226 F.3d 133, 138-39 (2d Cir. 2 000);
see also Odesina v. Saint Francis Hosp., No.
3:01CV1091(PCD), 2002 WL 32500865, at *1 (D. Conn. Feb. 26,
2002) ("Dismissal is appropriate where an identity of
issues exists and the controlling issues in the dismissed
action will be determined in the other lawsuit.").
Plaintiff's motion to dismiss appears designed to evade
this rule, and to undo his earlier dismissal of defendant
DelMauro, by proceeding with the later-filed case, which
includes DelMauro as a defendant.
Court cannot provide plaintiff with the relief he seeks;
namely, a dismissal of the instant matter that would permit
his second-filed case to proceed without impediment.
Plaintiff may elect to dismiss this case, with
prejudice, but he is cautioned that a dismissal with
prejudice might prevent him from refiling his claims against
the defendants in this matter. The Court is not inclined to
make plaintiff any guarantees about the disposition of the
claims in 16CV1180.