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Cunningham v. Homeside Financial LLC

United States District Court, D. Maryland

October 15, 2018

CRAIG CUNNINGHAM
v.
HOMESIDE FINANCIAL, LLC

          MEMORANDUM

          Ellen L. Hollander United States District Judge.

         Plaintiff 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 received. Id.

         On 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.

         About 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.

         No 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 Judgment.

         I. Factual and Procedural Background[1]

         In his 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. ¶ 3.

         Homeside 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.

         On 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.

         Thereafter, 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.

         Homeside 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. ECF 35.

         II. Legal Standards Governing Voluntary Dismissal

         Pursuant 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. 2001).

         To 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 ...


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