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Opacmare USA, LLC v. Lazzara Custom Yachts, LLC

United States District Court, M.D. Florida, Tampa Division

October 27, 2017

OPACMARE USA, LLC, Plaintiff,
v.
LAZZARA CUSTOM YACHTS, LLC, et al., Defendants.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE

         This matter comes before the Court pursuant to Plaintiff Opacmare USA, LLC's Motion for Voluntary Dismissal Without Prejudice, filed on October 9, 2017. (Doc. # 80). Lazzara Custom Yachts, LLC filed a response in opposition on October 23, 2017. (Doc. # 85). For the reasons that follow, the Motion is granted to the extent that Opacmare's claims are dismissed without prejudice subject to the condition set forth more fully below.

         I. Background

         Opacmare filed the Complaint on November 30, 2016 (Doc. # 1), and then the Amended Complaint on January 6, 2017, in response to an initial motion to dismiss. (Doc. ## 30, 44). The Amended Complaint alleges causes of action for trademark infringement under 15 U.S.C. § 1114 and Florida common law; trademark counterfeiting, 15 U.S.C. § 1114; unfair competition under 15 U.S.C. § 1125(a) and Florida common law; cyberpiracy, 15 U.S.C. § 1125; and violation of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. (Doc. # 44). Lazzara Custom Yachts filed its Answer to the Amended Complaint on January 20, 2017, which included counterclaims seeking a declaratory judgment declaring it to be the owner of the LAZZARA trademark and correction of the trademark registry. (Doc. # 53). Defendants Joseph M. Lazzara and Steven B. Lazzara filed an Answer on January 25, 2017. (Doc. # 54).

         According to Opacmare, it has been attempting to negotiate toward a voluntary dismissal without prejudice of its own claims, while allowing Defendant's counterclaims to continue to resolution before this Court, since at least June 6, 2017. (Doc. # 80 at 3). Lazzara Custom Yachts admits such negotiations occurred by June 26, 2017, at the latest. (Doc. # 85 at 7). The fact discovery deadline was July 3, 2017 (Doc. ## 49, 67), although depositions and expert discovery continued after that date (Doc. ## 49, 67, 85 at 7).

         The parties filed a stipulation of voluntary dismissal as to the individual Defendants Joseph and Steven Lazzara on July 4, 2017. (Doc. # 68). At this time, the case proceeds only as to Lazzara Custom Yachts, which filed a Motion for Summary Judgment on September 15, 2017. (Doc. # 79). Before its response was due on that motion, Opacmare filed Plaintiff's Motion for Voluntary Dismissal Without Prejudice on October 9, 2017. (Doc. # 80). Lazzara responded on October 23, 2017 (Doc. # 85), and the Motion is now ripe.

         II. Legal Standard

         “Rule 41(a) of the Federal Rules of Civil Procedure governs a plaintiff's ability to dismiss an action voluntarily and without prejudice. The rule allows a plaintiff to do so without seeking leave of court, as long as the defendant has not yet filed an answer or a motion for summary judgment.” Arias v. Cameron, 776 F.3d 1262, 1268 (11th Cir. 2015) (internal citations omitted). But, if the defendant has filed an answer or motion for summary judgment,

an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

         Fed. R. Civ. P. 41(a)(2). “The purpose of Rule 41(a)(2) ‘is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.'” Arias, 776 F.3d at 1268 (quoting McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856 (11th Cir. 1986)).

         “A district court enjoys broad discretion in determining whether to allow a voluntary dismissal under Rule 41(a)(2) . . . .” Id. “Generally speaking, a motion for voluntary dismissal should be granted unless the defendant will suffer clear legal prejudice other than the mere prospect of a second lawsuit.” Id. In determining whether a defendant will suffer clear legal prejudice, “the Court should consider such factors as the defendant's effort and expense of preparation for trial, excessive delay and lack of diligence . . . in prosecuting the action, insufficient explanation for . . . a dismissal, and whether a motion for summary judgment has been filed by the defendant.” Peterson v. Comenity Capital Bank, No. 6:14-cv-614-Orl-41TBS, 2016 WL 3675457, at *1 (M.D. Fla. May 3, 2016) (quoting Pezold Air Charters v. Phx. Corp., 192 F.R.D. 721, 728 (M.D. Fla. 2000)); see also Potenberg v. Boston Sci. Corp., 252 F.3d 1253, 1259 n.5, 1259-60 (11th Cir. 2001)(describing these factors as a guide, rather than a mandatory checklist, which derives from Pace v. Southern Express Co., 409 F.2d 331, 334 (7th Cir. 1969)). Ultimately, “[t]he court's task is to ‘weigh the relevant equities and do justice between the parties.'” Goodwin v. Reynolds, 757 F.3d 1216, 1219 (11th Cir. 2014) (quoting McCants, 781 F.2d at 857). Furthermore,

[i]t is no bar to a voluntary dismissal that the plaintiff may obtain some tactical advantage over the defendant in future litigation. Dismissal may be inappropriate, however, if it would cause the defendant to lose a substantial right. Another relevant consideration is whether the plaintiff's counsel has acted in bad faith.

Id. (internal citations and quotation marks omitted). The default under Rule 41(a)(2) is that a dismissal thereunder is without prejudice. Arias, 776 F.3d at 1268.

         III. ...


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