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Majors v. Professional Credit Managment, Inc.

United States District Court, E.D. Missouri, Eastern Division

March 12, 2018

CURT MAJORS, Plaintiff,
v.
PROFESSIONAL CREDIT MANAGEMENT, INC., Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion of Plaintiff Curt Majors to dismiss with prejudice this action pursuant to Federal Rule of Civil Procedure 41(a)(2). ECF No. 24. Defendant Professional Credit Management opposes the motion and seeks monetary sanctions against Plaintiff's attorney for bringing a frivolous lawsuit. ECF No. 25. For the reasons set forth below, the motion to dismiss will be granted.

         BACKGROUND

         This case asserting violations of the Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq., (“FDCPA”) was filed by Plaintiff, through counsel, on January 24, 2017. In his complaint, Plaintiff claims that Defendant violated the FDCPA when it sent a collection letter to Plaintiff for an amount that included collection fees for payments by credit and debit cards. Plaintiff alleges that he did not agree to these collection fees, the charging of which constituted deceptive, misleading, and unfair debt collection practices.

         Defendant answered the complaint on March 23, 2017, and the Court entered a Case Management Order on May 15, 2017. On June 27, 2017, the Court engaged the parties in a telephone conference to resolve a discovery dispute regarding Plaintiff's deposition, set that day, and that deposition went forward. On September 7, 2017, Defendant filed a motion for summary judgment, arguing that (1) Plaintiff testified by deposition that he was not confused by the language contained in the debt collection letter stating that a convenience fee would be charged by a third party processor if he used his credit card; and (2) the collection letter clearly disclosed that a third party processor, not Defendant, would have collected the convenience fee had Plaintiff elected to pay the debt electronically, and Defendant cannot be held to have violated the FDCPA where a third party would have collected such a fee.

         Plaintiff requested two extensions of time to respond to the motion for summary judgment. The first request was filed with the consent of Defendant, but the second was not. The Court granted both extensions, but indicated that no further extensions would be granted beyond October 30, 2017. On October 31, 2017, rather than responding to the motion for summary judgment, Plaintiff filed a motion to voluntarily dismiss with prejudice his lawsuit against Defendant. Defendant opposes the motion, requesting that the Court instead rule on the motion for summary judgment because Plaintiff's counsel knew or should have known before filing the lawsuit that the case had no merit. Defendant contends it incurred substantial costs defending this litigation and seeks sanctions against Plaintiff's counsel for filing a frivolous lawsuit.

         Plaintiff's counsel argues in response that other jurisdictions have ruled that charging a convenience fee violated the FDCPA, which gave him the reasonable belief that this lawsuit had merit. Moreover, Plaintiff's counsel states that he litigated this case in good faith until the motion for summary judgment was filed, at which time counsel determined that, based on Plaintiff's deposition and the facts of the case, Plaintiff would be unable to withstand summary judgment. Therefore, rather than incurring additional costs to brief the summary judgment, Plaintiff's counsel moved to voluntarily dismiss the case with prejudice. This, Plaintiff's counsel maintains, does not constitute sanctionable conduct.

         DISCUSSION

         Motion to Dismiss with Prejudice

         After “the opposing party serves either an answer or a motion for summary judgment . . . 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)(1) and (2). The Court considers the following four factors when determining whether to grant a voluntary dismissal:

(1) the defendant's effort and the expense involved in preparing for trial, (2) excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, (3) insufficient explanation of the need to take a dismissal, and (4) the fact that a motion for summary judgment has been filed by the defendant.

See Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998). Usually, a request for voluntary dismissal with prejudice is granted. Owner-Operator Indep. Drivers Ass'n v. United Van Lines, Inc., No. 4:06-CV-219 (JCH), 2007 WL 1223463, at *2 (E.D. Mo. Apr. 24, 2007). Denial of a dismissal with prejudice is proper, however, where it would be unfair to Defendant to dismiss the case. Id. (denying voluntary dismissal with prejudice in a class action because the defendant had put considerable effort and expense into the case, the plaintiffs' contention that prior court orders had effectively terminated their claims was an insufficient explanation for dismissal, counterclaims were still pending, and the court was not convinced that dismissing the class members with prejudice would result in a final judgment).

         Here, Defendant has failed to show how dismissal with prejudice would be unfair or prejudicial. Defendant requests that the Court deny Plaintiff's motion to dismiss with prejudice and instead rule on the motion for summary judgment. But the Court sees little to be gained from such an expense of judicial resources, as a dismissal with prejudice is a final judgment on the merits with res judicata effect. 9 Charles Alan Wright et al., Federal Practice & Procedure § 2367 (3d ed. 2017) (“A dismissal with prejudice, unless the court has made some other provision, is subject to the usual rules of res judicata and is effective not only on the immediate parties to the action but also on their privies.”). Moreover, as Defendant itself argues, there is already case law in this District supporting Defendant's argument that ...


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