United States District Court, D. Maryland
GOODLUCK C. ONYENEHO, Plaintiff,
FARMERS INS. EXCHANGE, Defendant.
MEMORANDUM AND ORDER
JAMES K. BREDAR, District Judge.
Pending before the Court are Defendant's motion to dismiss for lack of prosecution or, alternatively, to compel Plaintiff to respond to Defendant's discovery requests (ECF No. 31) and Plaintiff's motion for voluntary dismissal without prejudice (ECF No. 37). The motions have been briefed (ECF Nos. 36, 38, 39, & 41), and no hearing is required, Local Rule 105.6 (D. Md. 2011). Defendant's motion will be granted in part and denied in part, and Plaintiff's motion will be denied.
Proceeding pro se, Goodluck C. Onyeneho filed this suit on December 17, 2012, alleging employment discrimination and retaliation. (Compl., ECF No. 1.) Initially, Onyeneho sued Farmers Insurance Group and three individuals. ( Id. ) According to the docket, he never served the initial complaint on those defendants. He then filed an amended complaint on January 14, 2013, and apparently served it on the defendants. (ECF No. 5.) The defendants' motion to strike the amended complaint was granted (ECF Nos. 9 & 10), and thereafter, Onyeneho filed a notice of waiver of service and consent to file an amended complaint (ECF No. 11). In July 2013, Onyeneho's consent motion for leave to file a second amended complaint was granted (ECF Nos. 17 & 18); the newly amended complaint was filed July 18, 2013 (ECF No. 19). The only defendant in this complaint is Farmers Insurance Exchange ("Farmers Insurance"). The complaint was duly answered on August 2, 2013 (ECF No. 20), and a scheduling order was entered on August 7, 2013 (ECF No. 24).
The scheduling order provided that all depositions and other discovery were to be completed by December 20, 2013. (ECF No. 24.) On December 16, 2013, Farmers Insurance filed a letter requesting a sixty-day extension of the discovery period and the other deadlines in the scheduling order. (ECF No. 29.) In its letter, Defendant indicated it had served various discovery requests upon Onyeneho in September and that his responses were due October 28, 2013. However, as of December 16, Farmers Insurance had received no discovery responses. Further, Defendant had sent Onyeneho a letter on December 9 requesting him to respond to the discovery requests. Onyeneho responded on December 12 by making a settlement demand on Defendant. Thus, Farmers Insurance was requesting additional time to try to resolve their discovery matters or, if unsuccessful, to file a motion to compel. This motion was granted. (ECF No. 30.)
On January 24, 2014, Defendant filed a motion to dismiss for lack of prosecution or, alternatively, to compel Plaintiff's discovery responses. (ECF No. 31.) On February 4, 2014, an attorney entered an appearance on Onyeneho's behalf (ECF No. 33) and, on February 10, filed a consent motion to extend the time for Onyeneho to respond to Defendant's motion and to extend the time for completion of discovery (ECF No. 34). This motion indicated,
[T]here are questions concerning discovery that may be easily resolved by counsel now entering his appearance and by granting the parties additional time to conduct discovery. By providing the parties additional time to conduct discovery, any issues concerning discovery requests and/or depositions may be readily addressed without the court wasting any time or resources addressing them. The granting of an extension will not prejudice either party and will instead be beneficial in moving the litigation forward.
The Court granted the motion and extended the discovery deadline to April 18, 2014. (ECF No. 35.) After another brief extension of the response deadline as to Defendant's motion, Onyeneho filed both his response as well as the pending motion for voluntary dismissal without prejudice. (ECF Nos. 36, 37, 40.) Following final briefing on the motions, Farmers Insurance filed on April 18 a request that all case deadlines as established in the extension order (ECF No. 35) be stayed until after the Court had ruled on the two pending motions. (ECF No. 42.) This was granted. (ECF No. 43.)
II. Motion for Voluntary Dismissal without Prejudice
Because the Defendant filed an answer to the second amended complaint and has not stipulated to dismissal, Onyeneho may not dismiss this case without a court order. Pursuant to Federal Rule of Civil Procedure 41(a)(2), "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.... Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice." The purpose of this rule is "to allow voluntary dismissals unless the parties will be unfairly prejudiced." Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987). The focus of the district court in ruling on a motion under Rule 41(a)(2) is "primarily on protecting the interests of the defendant." Id. Relevant factors to be considered include "the opposing party's effort and expense in preparing for trial, excessive delay and lack of diligence on the part of the movant, and insufficient explanation of the need for a voluntary dismissal, ' as well as the present state of litigation." Miller v. Terramite Corp., 114 F.Appx. 536, 540 (4th Cir. 2004) (unpublished) (quoting Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996)).
Taking the third factor first, Onyeneho vaguely offers as justification for voluntary dismissal without prejudice that,
[b]ased upon his attorney's advice, Plaintiff believes that it is in the best interest of both parties to dismiss this matter and properly file a new complaint against Defendant.... Filing a new complaint will allow the parties to restart the discovery process without the cost and effort of recreating a discovery schedule. Dismissing this matter will also save the potential cost and delay of Plaintiff attempting to amend his complaint with the assistance of his new attorney. Therefore, granting Plaintiff's motion is in the interest of judicial efficiency and will result in the less costly resolution for both parties.
(Pl.'s Mot. Vol. Dismissal, unnumbered pages, ECF No. 37 at 5-6.)
In other words, Onyeneho wants a fresh start. In the world of golf, this would be called a mulligan: "a free shot sometimes given a golfer in informal play when the previous shot was poorly played." Given that Onyeneho really seeks leave to file another amended complaint, that objective can potentially be accomplished without dismissal of the existing case. See Shabazz v. PYA Monarch, LLC, 271 F.Supp.2d 797, 800 (E.D. Va. 2003) (finding plaintiff failed to provide sufficient explanation for need for dismissal based on asserted desire to add a defendant and restate grounds for motion for judgment; plaintiff's purpose "is best accomplished by a motion for leave to amend the complaint, not a motion to dismiss"). See also Howard v. Inova Health Care Servs., 302 F.Appx. 166, 180 (4th Cir. 2008) (unpublished) (record failed to support plaintiff's explanation for need for dismissal); Wieters v. Roper Hosp., Inc., 58 F.Appx. 40, 44 (4th Cir. 2003) (unpublished) (plaintiff failed to explain why dismissal would benefit his case); Francis v. Ingles, 1 F.Appx. 152, ...