This matter comes before the Court pursuant to Catarino Baltazar's Motion for Voluntary Dismissal Without Prejudice (Doc. # 34), which was filed on December 27, 2011. Balboa Insurance Company filed a Response in Opposition to the Motion (Doc. # 36) on January 10, 2012.
For the reasons that follow, this Court dismisses Baltazar's suit against Balboa without prejudice under Rule 41(a)(2), Fed. R. Civ. P., and imposes the curative condition that Baltazar be required to pay Balboa's attorney's fees and costs incurred in this action if Baltazar re-files his case against Balboa.
Baltazar alleges that his home was damaged by a sinkhole and that Balboa, his insurer, failed to pay insurance proceeds. Baltazar filed a breach of contract action against Balboa in state court on November 24, 2010. (Doc. # 2). Balboa removed the case to this Court on December 29, 2010, on the basis of diversity of citizenship. (Doc. # 1). Balboa filed a Motion to Dismiss on January 5, 2011, arguing that Baltazar is not entitled to insurance proceeds because he is not named as an insured on the relevant insurance policy. (Doc. # 3). The Court denied the Motion to Dismiss after finding that Baltazar has an insurable interest by virtue of his ownership of the home, regardless of a mortgage encumbering the property. (Doc. # 19). Baltazar moved to remand, arguing that the amount in controversy does not exceed the threshold amount of $75,000. (Doc. # 5). The Court rejected Baltazar's argument and denied the Motion to Remand upon consideration of the claimed damage to the property ($159,815) and the policy limits ($105,000). (Doc. # 18).
The parties filed a Case Management Report on April 7, 2011, and the Court issued its Case Management and Scheduling Order on May 3, 2011. (Doc. ## 14, 16). The Court established June 20, 2011, as the deadline for motions to amend pleadings, September 30, 2011, as the discovery deadline, and November 14, 2011, as the dispositive motions deadline. This case is set for a February 7, 2012, pretrial conference and a March, 2012, jury trial. (Doc. # 16).
After reaching an impasse at mediation on September 19, 2011, Balboa filed its Motion for Summary Judgment on November 11, 2011. (Doc. # 28). Among other arguments, Balboa asserts that Baltazar is not entitled to any insurance proceeds because Baltazar has not made a payment on his mortgage or paid insurance premiums since 2007. (Doc. # 28 at 1-2).
Rather than responding to Balboa's Motion for Summary Judgment, Baltazar filed a Motion to Amend the Complaint to add new counts against Balboa and to join Bank of America and BAC Home Loan Servicing, L.P. as Defendants. On December 13, 2011, the Court denied the Motion to Amend the Complaint and directed Baltazar to file his response in opposition to the Motion for Summary Judgment within 14 days. (Doc. # 33). Rather than responding to the Motion for Summary Judgment, Baltazar filed his Motion for Voluntary Dismissal. (Doc. # 34). Baltazar seeks dismissal of this action at this late stage without prejudice.
Rule 41, Fed. R. Civ. P., governs this matter and states in pertinent part:
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion ...