United States District Court, D. Maryland
L. Hollander United States District Judge.
Craig Cunningham filed suit against defendant Homeside
Financial, LLC (“Homeside”), asserting violations
of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227. ECF 1. The claim
arises from two telemarketing calls that Cunningham allegedly
April 20, 2018, Homeside filed a Motion for Judgment on the
Pleadings (“Motion for Judgment”), contending
that one of the two telemarketing calls alleged in the
Complaint was not made by Homeside or its agent. ECF 30. The
motion is supported by a memorandum (ECF 30-1) (collectively,
“Motion for Judgment”). Cunningham filed an
opposition (ECF 31), and Homeside filed a reply. ECF 32.
six weeks after Homeside's Motion for Judgment became
ripe, Cunningham filed a motion seeking voluntary dismissal
of the entire case, without prejudice, pursuant to Fed. R.
Civ. Proc. 41(a)(2). ECF 35 (“Motion for
Dismissal”). Homeside opposes Cunningham's Motion
for Dismissal, arguing that the case should be dismissed with
prejudice or that, if dismissal without prejudice is granted,
the dismissal should be conditioned upon plaintiff's
payment of Homeside's attorneys' fees and costs. ECF
38. Homeside submitted numerous exhibits with its opposition.
Cunningham has filed a reply (ECF 39), with exhibits.
hearing is necessary to resolve the pending motions.
See Local Rule 105(6). For the reasons that follow,
I shall grant Cunningham's Motion for Dismissal, without
prejudice, and deny as moot Homeside's Motion for
Factual and Procedural Background
Complaint, Cunningham alleges that Homeside “placed
telemarketing calls to [his] cellular telephone number for
the purposes of advertising its services using an automated
dialing system.” ECF 1, ¶ 2. Specifically,
Cunningham alleges that he received a call from
Homeside's unnamed agent on March 23, 2017, and a second
call from Homeside on May 31, 2017. Id. ¶¶
20, 21. Cunningham maintains that he did not consent to
receive the two calls. Id. ¶¶ 3, 25.
Because telemarketing campaigns generally place calls to
thousands or millions of potential customers, Cunningham
filed his suit on behalf of a proposed nationwide class of
call recipients. Id. Â¶ 3.
asserts that it only contacts customers who have consented to
receive calls, and denies using dialing equipment
constituting an “automatic telephone dialing
system” (“ATDS”), as prohibited by the
TCPA. ECF 15 (Answer), ¶¶ 11, 19-20; Fifth
Affirmative Defense. Although Homeside admits that it called
Cunningham on May 31, 2017, it contends that it did not use
an ATDS to place the call. Id. ¶¶ 19-20,
22. Homeside also argues that “the Complaint does not
allege sufficient facts to state a claim for Homeside's
vicarious liability for use of an agent under the
[TCPA].” ECF 30 at 1; see also ECF 15.
October 18, 2017, after Cunningham filed his Complaint on
July 25, 2017 (ECF 1), Homeside filed an Answer and a Motion
to Stay Proceedings, in order to await a decision in a case
pending before the United States Court of Appeals for the
District of Columbia Circuit, involving the definition of an
ATDS. ECF 15; ECF 17. The court granted Homeside's motion
to stay, over Cunningham's opposition. ECF 26. On March
22, 2018, Homeside notified the court that the D.C. Circuit
had issued its ruling. ECF 27.
Judge Garbis held a teleconference with the parties. And, he
issued a Scheduling Order providing dates for (1) Homeside to
file a partial Motion for Judgment on the Pleadings as to its
responsibility for the first telemarketing call; (2) allowing
the parties to engage in “[i]nitial discovery re:
technology issues;” and (3) Homeside to file a Motion
for Summary Judgment regarding whether it had used an ATDS to
place the second telemarketing call. ECF 29.
filed its partial Motion for Judgment regarding the first
call, and the parties engaged in the limited initial
discovery contemplated by the scheduling order. On July 13,
2018, about one week before the deadline for Homeside to file
its Motion for Summary Judgment regarding the use of an ATDS,
Cunningham filed his Motion for Dismissal, without prejudice.
Legal Standards Governing Voluntary Dismissal
to Fed.R.Civ.P. 41(a)(2), once a defendant has served an
answer, and absent the consent of all parties, “an
action may be dismissed at the plaintiff's request only
by court order, on terms that the court considers
proper.” Fed.R.Civ.P. 41(a)(2). The purpose of the rule
“is freely to allow voluntary dismissals unless the
parties will be unfairly prejudiced.” Davis v. USX
Corp., 819 F.2d 1270, 1273 (4th Cir. 1987); see also
Lang v. Manufacturers and Traders Tr. Co., 274 F.R.D.
175, 182 (D. Md. 2011). Accordingly, “[a]
plaintiff's motion to voluntarily dismiss a claim
[without prejudice] should not be denied absent plain legal
prejudice to the defendant.” Ellett Bros., Inc. v.
U.S. Fid. & Guar. Co., 275 F.3d 384, 388 (4th Cir.
avoid unfair prejudice, the district court is permitted
“to impose conditions on voluntary dismissal to obviate
any prejudice to the defendants which may otherwise result
from the dismissal without prejudice. In considering a motion
for voluntary dismissal, the district court must focus
primarily on ...