United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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
to Dismiss with Prejudice
“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).
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 ...