United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
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.
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).
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).
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.
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.
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)).
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.