United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court on Claimants'
Motion to Alter or Amend Order Dismissing Case Entered on
August 10, 2017 [ECF No. 139] and Claimants' Motion for
Attorney Fees, Costs, and Interest [ECF No. 141]. The Court
held a hearing on the motions on December 15, 2017. [ECF No.
165]. The Court has carefully reviewed the motions, the
record, arguments of counsel, and the applicable law, and is
otherwise fully advised. For the reasons that follow, the
motions are denied.
September 2015, the government filed its Complaint for
Forfeiture In Rem [ECF No. 1], alleging that over
$200, 000 in cash and cashier's checks were the proceeds
of or traceable to drug trafficking, transportation of stolen
goods in interstate commerce, and money laundering by Wilson
Colorado (“Colorado”). [Id. at 6-7]. The
assets were found and seized when law enforcement officers
conducted a search of the home Colorado shared with Miladis
Salgado (“Salgado”), his ex-wife. In November
2015, Colorado, Salgado, and a company owned by Colorado,
Kurvas Secret by W, Inc. (“Kurvas Secret”)
(collectively, “Claimants”), entered verified
claims for the assets. [ECF No. 22].
AnnChery Fajas USA, Inc. (“AnnChery”)-a company
that employed an associate of Colorado's, Tatiana
(“Narvaez-Caicedo”)-filed an action in the
Eleventh Judicial Circuit in and for Miami-Dade County,
Florida, alleging that Colorado had aided a scheme to steal
clothing from AnnChery. [ECF No. 110-3]. The stolen goods
counts alleged in the federal forfeiture action are related
to AnnChery's claims-in other words, AnnChery is the
victim of some of the alleged crimes forming the basis of the
federal forfeiture action. In November 2016, the state court
entered judgment in favor of AnnChery and against Colorado
and Kurvas Secret, but reserved ruling on the award of
damages and attorney's fees. [ECF No. 110-8]. In April
2017, the state court awarded AnnChery $318, 520.70 in
damages and attorney's fees. [ECF No. 117-1]. In July
2017, the state court authorized AnnChery to levy on property
of Colorado and Kurvas Secret, including its claims in this
federal forfeiture action, and assigned Colorado's rights
in the Defendants In Rem to AnnChery. [ECF No.
March 27, 2017, Claimants moved for summary judgment. [ECF
No. 108]. Four days later, the government filed its Motion
for Summary Judgment on Second and Third Claims of the
Verified Complaint, or in the Alternative, Motion for Leave
to Dismiss Action Without Prejudice [ECF No. 110]. The
government argued that in light of the state court action,
there were no genuine issues of triable fact as to the second
and third forfeiture counts relating to stolen property, but
argued in the alternative that the Court should allow the
government “to voluntarily dismiss this matter so that
ownership of the Defendants In Rem can be resolved
by the Miami-Dade Circuit Court.” [Id. at 4].
The Court granted the motion in part, finding good cause to
permit the government to voluntarily dismiss the action
without prejudice in light of the parallel state court
action. [ECF No. 133]. Only after the Court granted the
government's motion, Claimants objected that the
dismissal should be with prejudice so that they
could seek statutory attorney's fees. [ECF No. 136]. The
Court entered a final order of dismissal without
prejudice on August 10, 2017. [ECF No. 138].
instant motions, Claimants seek (1) to alter the dismissal
without prejudice to a dismissal with prejudice and (2) to be
awarded attorney's fees in light of the dismissal with
TO ALTER OR AMEND ORDER DISMISSING CASE
Rule 41 of the Federal Rules of Civil Procedure, a plaintiff
may unilaterally voluntarily dismiss an action only before
the opposing party has served either an answer or a motion
for summary judgment. See Fed. R. Civ. P. 41(a)(1).
After the defendant has answered or moved for summary
judgment, a plaintiff seeking to voluntarily dismiss her
complaint must obtain a court order, which the court may
issue “on terms that the court considers proper.”
See Id. 41(a)(2). “Unless the order states
otherwise, a dismissal under [Rule 41(a)(2)] is without
prejudice.” Id. “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 v.
Cameron, 776 F.3d 1262, 1268 (11th Cir. 2015) (quoting
McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856
(11th Cir. 1986)).
circuits, the district courts must apply some variation of a
multi-factor test to determine if voluntary dismissal under
Rule 41(a)(2) should be permitted. See 9 Fed. Prac.
& Proc. Civ. § 2364 (3d ed.), Westlaw (database
updated April 2017). Unlike other circuits, however,
“the Eleventh Circuit does not rely on a list of
factors to examine when considering a Rule 41 motion.”
Bradley v. MARTA, 2014 WL 4449874, *1 (N.D.Ga.
2014). Instead, in the Eleventh Circuit, a “district
court must ‘weigh the relevant equities and do justice
between the parties in each case, imposing such costs and
attaching such conditions to the dismissal as are deemed
appropriate.'” Pontenberg v. Bos. Sci.
Corp., 252 F.3d 1253, 1256 (11th Cir. 2001) (quoting
McCants, 781 F.2d at 857).
“[t]he district court enjoys broad discretion in
determining whether to allow a voluntary dismissal under Rule
41(a)(2).” Pontenberg, 252 F.3d at 1255.
“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.” Arias, 776 F.3d at 1268.
B.Discussion Claimants point out that although no
set list of factors must be weighed, in determining whether
legal prejudice precludes a Rule 41 dismissal without
prejudice, courts in this circuit have frequently considered
“the length of time and amount of resources spent by
the defendant in litigating the case, dilatory tactics by the
plaintiff, and whether the defendant had a motion for summary
judgment pending when the dismissal was requested.”
Jones v. Smartvideo Techs., Inc., No. 06-cv-2760,
2007 WL 1655855, *3 (N.D.Ga. 2007). Here, Claimants argue
that the duration of the litigation and their pending
dispositive motion at the time the government requested
dismissal weigh against voluntary dismissal without
prejudice. They further argue that loss of a basis for
statutory attorney's fees constitutes plain legal
true that the government's request for voluntary
dismissal in the instant action came after eighteen months of
litigation. But while the duration of the litigation may be
relevant to determine whether the balance of equities makes
voluntary dismissal without prejudice appropriate, it is not
dispositive. See Pontenberg, 252 F.3d at 1256
(“Neither the fact that the litigation has proceeded to
the summary judgment stage nor the fact that the
plaintiff's attorney has been negligent in prosecuting
the case, alone or together, conclusively or per se
establishes plain legal prejudice requiring the denial of a
motion to dismiss.”). Here, the voluntary dismissal
also came after the alleged victim of the fraud underlying
one of the bases for forfeiture prevailed in a private civil
suit in state court. The government then sought either
summary judgment or voluntary dismissal without prejudice to
allow the funds to be distributed to the alleged victim. So
while Claimants indeed had a motion for summary judgment
pending at the time of dismissal, so too did the government.
Nothing suggests to the Court that the government acted in
bad faith or that the government did not believe it had a
meritorious case for forfeiture. Rather, it determined that
in light of the state court judgment and AnnChery's claim
to the assets, voluntary dismissal without prejudice would be
an adequate alternate resolution. In the interests of justice
and to limit waste of both judicial resources and the
resources of the parties, this Court found voluntary
dismissal without prejudice to be the appropriate resolution
of the instant action.
cases Claimants rely on are inapposite. In United States
v. Certain Real Property, 543 F.Supp.2d 1291 (N.D. Ala.
2008), for instance, the district court found a dismissal
with prejudice appropriate where the claimant had been
acquitted of the alleged offense that formed the basis for
the forfeiture action. Id. at 1292. The facts here
are readily distinguishable. Although the government did not
ultimately indict Mr. Colorado for ...