United States District Court, S.D. Florida
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant Boca
Aircraft Maintenance, LLC's (“Defendant
Boca”) Motion for Leave to Voluntarily Dismiss Its
Counterclaim Without Prejudice, ECF No. 
(“Motion”). The Court has reviewed the Motion,
all supporting and opposing submissions, the record and
applicable law, and is otherwise fully advised. For the
reasons that follow, the Motion is granted.
Motion, Defendant Boca seeks the dismissal of its single
counterclaim for open account (the
“Counterclaim”), which was filed on January 6,
2019. See generally ECF No. . The sole exhibit
attached to the Counterclaim is the contract allegedly
entered into by both parties. ECF No. [26-1] (the
“Contract”). The Contract contains an
attorney's fees provision, which requires the payment of
attorney's fees and costs in the event a party is
required to take any action to enforce the agreement between
the parties. Id. at 26.
Boca contends that at the time the Counterclaim was filed,
substantial monies were owed to it by the Plaintiff. ECF No.
, at 1. Thus, upon being served with the Complaint in
this instant action, and because the claims in the Complaint
arose from the same transaction and occurrence, Defendant
Boca was left “no choice” but to assert its
compulsory Counterclaim. Id. Subsequent to the
Counterclaim's filing, however, payment for the
outstanding services rendered by Defendant Boca were received
via the Plaintiff's credit card. Id. at 2.
Plaintiff allegedly informed Defendant Boca that it was in
the process of disputing the charges made to its credit card.
Id. Defendant Boca argues that, to date, no dispute
as to the charges have been made, and it now seeks to dismiss
the Counterclaim. Id. Accordingly, Defendant Boca
requests that the dismissal be without prejudice, in the
event Plaintiff disputes the charges. Id. at 2-3.
Neelu Aviation, LLC (“Plaintiff”) does not object
to the dismissal but argues that such dismissal should be
with prejudice and that Defendant Boca should have
to pay the Plaintiff's attorneys' fees associated
with its defense to the Counterclaim, since the dispute arose
out of the Contract and is therefore governed by Fla. Stat.
§ 57.105(7). ECF No. , at 4. Plaintiff also seeks
Rule 11 sanctions for filing what it contends is a frivolous
Counterclaim. Id. at 2.
Rule 41(a)(2), a party, with court approval, may dismiss an
action voluntarily and without prejudice to be refiled in the
future. McCants v. Ford Motor Co., Inc., 781 F.2d
855, 856 (11th Cir. 1986). The rule allows a court to grant a
request for voluntary dismissal “on terms that the
court considers proper.” Fed.R.Civ.P. 41(a)(2). Rule
41(a)(2) is designed to prevent voluntary dismissals that
unfairly affect the other side by allowing for curative
conditions. McCants, 781 F.2d at 856. “Thus a
district court considering a motion for dismissal without
prejudice should bear in mind principally the interests of
the defendant, for it is the defendant's position that
the court should protect.” Id. at 856-57
(citing LeCompte v. Mr. Chip, Inc., 528 F.2d 601,
604 (5th Cir. 1976)). Generally, a dismissal should be
granted unless the court finds that the defendant will suffer
some legal prejudice beyond the possibility of another
lawsuit. Id. at 857. “[T]he district court
must exercise its broad equitable discretion under Rule
41(a)(2) to weigh the relevant equities and do justice
between the parties in each case, imposing such costs and
attaching such conditions to the dismissal as deemed
a court will not allow a litigant to voluntarily dismiss an
action without prejudice pursuant to Rule 41(a)(2) once [a
party] has expended considerable sums preparing for trial
“except on condition that the plaintiff reimburse the
[party] for at least some portion of his expenses of
litigation.” Id. at 860. The reimbursement of
a party's litigation-related expenses includes reasonable
attorney's fees. Id.
as it relates to the issue of the dismissal, the Court agrees
that a dismissal without prejudice is appropriate.
“[I]n most cases a dismissal should be granted unless
the [party] will suffer clear legal prejudice, other than the
mere prospect of a subsequent lawsuit, as a result.”
McCants v. Ford Motor Co., 781 F.2d 855, 856-57
(11th Cir. 1986). The Court first notes the obvious-that the
dismissal of the Counterclaim, will not end the instant
action. Plaintiff's claims against the Defendants remain
pending, and this action appears to be proceeding to trial
regardless of the dismissal of the Counterclaim. Thus, any
time which has been spent preparing for trial has not been
spent in vain. In its Opposition, Plaintiff states in
somewhat conclusory fashion, that it with suffer legal
prejudice if the Court dismisses this action without
prejudice unless the Court conditions such dismissal on
Plaintiff recovering its attorneys' fees. ECF No. ,
at 3-4. Beyond stating that it is entitled to its
attorneys' fees, Plaintiff's Opposition is silent as
to what legal prejudice it will suffer. Absent clear
legal prejudice, and in exercising its “broad
discretion under Rule 41(a)(2) to weigh the relevant equities
and do justice between the parties in each case, ” the
Court does not find a dismissal with prejudice warranted.
McCants, 781 F.2d at 857. Accordingly, Defendant
Boca's Counterclaim is dismissed without prejudice.
Court next turns to the issue of whether the Plaintiff is the
“prevailing party” as it relates to the
Counterclaim and is thus entitled to recover its
attorneys' fees related to the litigation surrounding the
Counterclaim. Generally, when a plaintiff voluntarily
dismisses an action, the defendant is deemed the prevailing
party for purposes of attorney's fees. Thornber v.
City of Ft. Walton Beach, 568 So.2d 914, 919 (Fla.
1990); Alhambra Homeowners Assoc. v. Asad, 943 So.2d
316, 319-21 (Fla. 4th DCA 2006) (analyzing Thornber
and its progeny in support of the general rule that a
voluntary dismissal by plaintiff conveys prevailing party
status on defendants); Shave v. Stanford Fin. Group,
2008 WL 3200705, * 1 (S.D. Fla. 2008) (relying on
Florida's general rule to award attorney's fees to
defendants after plaintiff's voluntary dismissal).
Florida courts have consistently followed Thornber,
saying that it is the “general rule” and it
applies to both “statutory or contractual provisions
awarding attorney's fees to the ‘prevailing
party' in litigation.” Alhambra Homeowners
Ass'n, Inc., 943 So.2d at 318; see also Prescott
v. Anthony, 803 So.2d 835, 836-37 (Fla. 2d DCA 2001).
Court recognizes that Defendant Boca premises the instant
Motion on the basis that the outstanding amount it claimed it
was owed by the Plaintiff has since been satisfied by the
charging of the Plaintiff's credit card through the use
of the credit card authorization form. ECF No. , at 2.
Therefore, it appears that Defendant Boca is arguing that its
Counterclaim has since been rendered moot since it initially
filed it. However, Defendant Boca filed the Counterclaim on
January 6, 2019. See ECF No. . Nineteen days
later, on January 25, 2019, Defendant Boca initiated the
credit card charge. See Defendant Boca's Partial
Mot. for Summ. J., ECF No. , at ¶ 8. Defendant Boca
then waited approximately ten months before it filed
the instant Motion seeking the dismissal of the Counterclaim.
ECF No. . Therefore, the Counterclaim, and the
litigation surrounding it, was pending for almost a year
before the Defendant sought its dismissal.
the Court acknowledges that the instant dismissal is without
prejudice and is sought on a voluntary basis, the
Thornber rule applies even if the dismissal is
without prejudice (see Alhambra, 943 So.2d at 318)
and “despite the fact the case has not been resolved on
the merits.” Ajax Paving Indus., Inc. v. Hardaway
Co., 824 So.2d 1026, 1029 (Fla. 2d DCA 2002). After a
review of the controlling authority, the Contract and the
record in this matter, the Court agrees that Plaintiff is the
prevailing party solely as it relates to the Counterclaim.
Order serves only to award the Plaintiff its reasonable
attorneys' fees and costs as they relate to
Plaintiff's defense of the Counterclaim. Further, given
the present posture of this case, the Court will defer its
ruling as to an award of attorneys' fees at this time, as
it is premature at this juncture. Should the Plaintiff
prevail in this action on the remaining claims, the award of
attorneys' fees may be greater at the end of this
litigation. Conversely, should Defendant Boca prevail on the
remaining claims pending, any award of attorneys' fees to
the Plaintiff would be offset by any award to Defendant Boca
at a later date. The Court will be in the best position to
determine an award regarding the attorneys' fees upon the
complete resolution of the instant action.
as for Plaintiff's request for Rule 11 sanctions, the
Court disagrees that such sanctions are appropriate. While
the Defendant did wait an extended period of time before
seeking dismissal of its Counterclaim, such Counterclaim was
not frivolous at the time it was filed, considering that the
amount Defendant Boca alleged it was owed had remained
outstanding. Therefore, the Court declines to grant
Plaintiffs request for Rule 11 sanctions.
it is ORDERED AND ...