Case: 13-14863    Date Filed: 01/20/2015   Page: 1 of 28


                                                                      [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      _________________________

                             No. 13-14863
                      _________________________

                   D.C. Docket No. 1:13-cv-01254-TCB


DIANA ARIAS,


                                                       Plaintiff-Appellant,

                                   versus


JOSEPH T. CAMERON, et al.,

                                                       Defendants-Appellees.


                      __________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     __________________________
                            (January 20, 2015)

Before WILSON, ROSENBAUM, and BLACK, Circuit Judges.
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ROSENBAUM, Circuit Judge:

      On the football field, a team with a weak defense may choose to emphasize

its offense. The trouble is, in the end, it can be hard to win without a reliable

defense.

      That is much like the problem that Defendants-Appellants Joseph T.

Cameron and The Dow Chemical Company (“Dow”) have in this case. Plaintiff-

Appellee Diana Arias sued Cameron and Dow for injuries that Cameron allegedly

inflicted on Arias while Cameron was acting within the course of his employment

for Dow. When Defendants sought judgment in the case on the basis that Arias

had allegedly failed to timely perfect service upon them before the statute of

limitations ran, Arias moved to voluntarily dismiss the case without prejudice. By

doing so, Arias hoped to take advantage of Georgia law, which allows a plaintiff

who originally files a case within the statute-of-limitations period to voluntarily

dismiss her case and refile it within six months, thereby triggering a new period in

which to timely effect service. Defendants went on the offensive, opposing Arias’s

motion for voluntary dismissal on the basis that a voluntary dismissal without

prejudice would prejudice them by depriving them of their statute-of-limitations

defense.

      The district court granted Arias’s motion and voluntarily dismissed the case

without prejudice. Defendants now appeal.

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      But Defendants’ statute-of-limitations defense is, by no means, a certain

winner.    So their offense—that they will suffer prejudice as the result of a

voluntary dismissal without prejudice because they will lose their statute-of-

limitations defense—necessarily falters since it depends on their unreliable

defense.

      And even if Defendants had a viable statute-of-limitations defense that

would be destroyed by a voluntary dismissal without prejudice, all of the other

equities in this case—which a district court should consider under Rule 41(a)(2) in

determining whether to grant a motion for voluntary dismissal—favor Arias. For

these reasons, we find that the district court did not abuse its discretion when it

granted Arias’s motion for voluntary dismissal without prejudice.

                                          I.

A. The Nature of the Case

      In her complaint, Arias alleged that, on March 19, 2011, she was riding her

bicycle in Georgia when Defendant-Appellant Cameron, driving a rental car, failed

to yield and collided with her. According to the complaint, the car that Cameron

was driving was insured by Cameron’s employer, Dow, and Cameron was

operating the car within the course and scope of his employment. As a result of the

incident, the complaint asserts, Arias suffered “great bodily injuries.”




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       When the incident occurred, Cameron produced a California driver’s license

to the Cobb County Police Department, which cited Cameron for failure to yield

under Georgia statute O.C.G.A. § 40-6-71 and issued Cameron a ticket.

       On February 25, 2013, just over three weeks before the end of Georgia’s

two-year statutory period for filing such claims, 1 Arias filed suit in Cobb County

State Court against Cameron and Dow. She claimed that she was entitled to

damages under two theories of recovery: negligence and stubborn litigiousness.

B. Arias’s Initial Attempts at Service

       Upon the filing of her complaint, Arias attempted to serve both Cameron and

Dow. With regard to Cameron, Arias stated in the proceedings below that she

believed him to be a California resident, based on his production of a California

driver’s license at the time of the incident and based on Georgia law that generally

requires all residents of the state for more than thirty days to obtain a Georgia

driver’s license before operating a motor vehicle in the state, see O.C.G.A. § 40-5-

20(a). For this reason, Arias attempted to serve Cameron with the summons and

complaint pursuant to Georgia’s Non-Resident Motorist Act, O.C.G.A. § 40-12-1,

et seq. (“NRMA”), which sets forth requirements for service on those who are not

residents of Georgia, as the service requirements relate to complaints involving the

operation of a motor vehicle.

       1
         In Georgia, the statute of limitations for bringing a tort action involving claims of
personal injuries is two years from date that the cause of action accrued. See O.C.G.A. § 9-3-33.
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      In an effort to comply with the NMRA, on March 13, 2013, Arias mailed the

summons and complaint to the Georgia Secretary of State to obtain service on

Cameron. Arias also sent Cameron a copy of the summons and complaint by

certified mail on the same date, which Cameron later received on March 23, 2013.

      With respect to Dow, counsel for Arias attested in the district-court

proceedings that, on February 6, 2013, he visited the Georgia Secretary of State’s

website to find the registered agent for Dow, but his query resulted in a showing of

no agent for service of process in Georgia. According to counsel for Arias, he did

not learn until “[m]uch later” that the website was “in transition and not

functioning properly.”

      Based on the erroneous belief that Dow lacked a corporate presence in

Georgia, Arias mailed a copy of the summons and complaint to Georgia’s

Secretary of State on February 28, 2013, to obtain service on Dow in Delaware, its

place of incorporation. Arias also sent the summons and complaint to Dow’s

registered agent in Delaware via certified mail on March 13, 2013. On that same

date, Arias sent the summons and complaint to the New Castle County Sheriff’s

Department as well, to make service on Dow in Delaware.

      On March 19, 2013, the day upon which Dow contends that the two-year

statute of limitations expired under O.C.G.A. § 9-3-33, Dow received the summons

and complaint that Arias sent by certified mail on March 13, 2013. One week

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later, on March 27, 2013, the New Castle County Sheriff’s Department personally

served Dow’s registered agent in Delaware with the summons and complaint.

      Although Arias believed that she had adequately served Dow, on April 1,

2013, Georgia’s Secretary of State sent counsel for Arias a letter stating that Dow

was actually registered with the Office of Georgia Secretary of State, so the Office

returned the documents that Arias’s counsel had sent it for service upon Dow.

Alerted to the fact that Dow had a registered agent in Georgia, Arias immediately

attempted to obtain personal service on Dow’s agent. Towards this end, on April

4, 2013, Arias sent the summons and complaint to the Gwinnett County Sheriff’s

Department for service on Dow’s Georgia agent. The Sheriff’s Department served

Dow’s registered agent on April 9, 2013.

C. Removal of the State Court Action and the Defendants’ Motion to Dismiss

      As a result of Arias’s service efforts, both Dow and Cameron received notice

of Arias’s action, and, on April 17, 2013, Dow and Cameron removed the matter to

federal court pursuant to 28 U.S.C. § 1441, asserting that the district court enjoyed

diversity jurisdiction over the parties under 28 U.S.C. § 1332.

      One week later, on April 25, 2013, Defendants filed a motion to dismiss

pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6), Fed. R. Civ. P. In the motion to

dismiss, Defendants asserted that Arias had failed to timely and properly serve

them, so the matter should be dismissed for improper service of process. They

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further argued that dismissal should be with prejudice, since, at the time that

Defendants filed their motion to dismiss, in Defendants’ view, Arias’s claims were

time-barred under Georgia’s two-year statute of limitations.

       More specifically, Dow contended that Arias did not make proper service

upon it until April 9, 2013, after the statute of limitations expired. As to Cameron,

Defendants asserted that service on him under Georgia’s NRMA was improper

because Cameron claimed to have actually been a resident of Georgia at the time

of the accident. 2 So Defendants argued that Arias should have served Cameron in

accordance with Georgia’s long-arm statute, O.C.G.A. § 9-10-91, which required

Arias to personally serve Cameron in California—something that Arias had not

done at that point. 3

       Cameron also contended that even if he were not considered to be a resident

of Georgia at the time of the incident, the NMRA service was deficient because

Arias had failed to comply with its strict requirements in that Arias allegedly had

omitted required pieces of information and did not file the proper papers with the


       2
          Despite the fact that he still apparently had no Georgia driver’s license at the time of the
incident, according to Cameron, he had lived in Georgia for approximately seven months and
was considering staying in Georgia permanently. Cameron stated that he engaged in daily life
activities such as entertaining friends at his home, had a gym membership, and received personal
mail in Georgia. 

O.C.G.A. § 9-10-94, a person of sound mind, who is of the age of majority and is
a nonresident of Georgia subject to personal jurisdiction under Georgia’s long-arm statute must
be served either personally or by leaving copies of the summons and complaint “at [his] dwelling
house or usual place of abode with some person of suitable age and discretion then residing
therein,” O.C.G.A. § 9-11-4(e)(7).
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state court after service. 4 Cameron also alleged that the NMRA service was

untimely since he did not receive the complaint and summons by certified mail

until March 23, 2013, after the statute of limitations had expired.

D. Arias’s Further Attempts to Serve Cameron

       The April 24, 2013, filing of the motion to dismiss put Arias on notice that

Cameron contended that he was a resident of Georgia at the time of the accident.

So Arias pursued personal service on Cameron in California, pursuant to Georgia’s

long-arm statute—the provision that would govern service on Cameron in

California if Cameron were a resident of Georgia at the time of the incident.

       On April 29, 2013, Arias sent the summons and complaint to the San

Bernardino’s Sheriff’s Office in California to accomplish service on Cameron.

According to the San Bernardino Sheriff’s Department, it attempted to serve

Cameron on four occasions between May 4, 2013, and May 29, 2013, but it had no

success. On the second attempt, the Sheriff’s Department left a business card with

a name and contact telephone number, requesting that Cameron call the San

Bernardino Sheriff’s Department, after no one answered Cameron’s door. Still, it

was unable to serve Cameron.


       4
          For instance, although Arias mailed Cameron a copy of the complaint and summons, the
defendants claimed that she did not include the notice of service upon the Secretary of State, as
required by O.C.G.A. § 41-12-2. The defendants also contended that Arias did not “append”
Cameron’s return receipt, her affidavit of compliance, and the summons, process, and complaint
to the other papers and file them collectively with the state court to establish that she had
complied with the NMRA.
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      So on May 16, 2013, counsel for Arias sent Cameron’s attorney a letter

stating that the San Bernardino Sheriff’s Department had been trying to serve

Cameron but was having no success. Counsel for Arias therefore asked Cameron’s

counsel whether Cameron would be willing to waive service, but Cameron refused.

      As a result and after the San Bernardino Sheriff’s Department had made four

unsuccessful service attempts on Cameron, on May 29, 2013, Arias hired a process

server in California and requested that the server “stake out” Cameron’s residence

until accomplishing service on Cameron. Two days later, on May 31, 2013, the

process server personally served Cameron with the summons and complaint under

Georgia’s long-arm statute.

E. Cameron and Dow’s Motion for Summary Judgment

      While Arias was still attempting to serve Cameron under Georgia’s long-

arm statute, on May 8, 2013, Defendants filed their Answer to the complaint and

re-filed their motion to dismiss as a motion for judgment on the pleadings,

pursuant to Rule 12(c).       Defendants continued to make essentially the same

arguments concerning alleged failure to effect proper service.

      Arias timely opposed the motion, arguing that service of process had been

timely and proper on both Defendants.         She also asserted that it would be

inequitable to penalize her under the circumstances, since she had diligently

pursued service of Defendants. Along with her opposition to Defendants’ motion

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for summary judgment, Arias moved for voluntary dismissal of the case without

prejudice, pursuant to Rule 41(a)(2), Fed. R. Civ. P., as an alternative to the

granting of summary judgment to Defendants. She did so for the express purpose

of taking advantage of Georgia law, which allows a litigant to refile a case within

six months of the voluntary dismissal of the action after the expiration of the

applicable statute of limitations, when the original action was filed within the

applicable statute of limitations. O.C.G.A. § 9-2-61.

      Defendants opposed Arias’s request for voluntary dismissal. Among other

reasons, Defendants contended that voluntarily dismissing the case would

eliminate Defendants’ statute-of-limitations defense, which was based on the claim

of ineffective timely service of process, since Georgia law allows a plaintiff to

revive her claims after the statute of limitations has already run and restart the

service clock.

      The district court granted Arias’s motion to voluntarily dismiss her case and

denied as moot Defendants’ motion for summary judgment.              But the court

nonetheless directed that if Arias chose to refile her claims, she must first pay

Defendants’ attorneys’ fees and costs incurred in this action, as the district court

determined those costs and fees.     Defendants now appeal the district court’s

voluntary dismissal of Arias’s claims.




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                                              II.

       The decision of whether to grant a voluntary dismissal pursuant to Rule

41(a)(2), Fed. R. Civ. P., falls within the sound discretion of the district court.

Therefore, we review the district court’s decision to voluntarily dismiss the case

for an abuse of discretion. See Fisher v. Puerto Rico Marine Mgmt., Inc., 

, 1502-03 (11th Cir. 1991) (per curiam) (citing LeCompte v. Mr. Chip, Inc.,

, 604 (5th Cir. 1976)5).

                                              III.

       Rule 41(a) of the Federal Rules of Civil Procedure governs a plaintiff’s

ability to dismiss an action voluntarily and without prejudice. See Fed. R. Civ. P.

41(a). The rule allows a plaintiff to do so without seeking leave of court, as long

as the defendant has not yet filed an answer or a motion for summary judgment.

Fed. R. Civ. P. 41(a)(1)(A). If a defendant has made such a filing, the plaintiff

must obtain permission from the court to voluntarily dismiss her case: “Except as

provided in Rule 41(a)(1), 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).

Such a dismissal is considered to be without prejudice unless otherwise specified

by the court.


       5
         Error! Main Document Only.Opinions of the Fifth Circuit issued prior to October 1,
1981, are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 

,
1209 (11th Cir. 1981).
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      A district court enjoys broad discretion in determining whether to allow a

voluntary dismissal under Rule 41(a)(2), Fed. R. Civ. P. Pontenberg v. Boston

Scientific Corp., 

, 1255 (11th Cir. 2001) (per curiam). Generally

speaking, a motion for voluntary dismissal should be granted unless the defendant

will suffer clear legal prejudice other than the mere prospect of a second lawsuit.

Id.; 

–03 (citing Durham v. Fla. E. Coast Ry. Co., 

, 368 (5th Cir. 1967)).

      The purpose of Rule 41(a)(2) “is primarily to prevent voluntary dismissals

which unfairly affect the other side, and to permit the imposition of curative

conditions.” McCants v. Ford Motor Co., Inc., 

, 856 (11th Cir. 1986)

(citation and internal quotation marks omitted). We must consider the crucial

question of whether “the defendant [would] lose any substantial right by the

dismissal.” 

(citation omitted). But, ultimately, the

determination of whether to grant such a dismissal falls within the sound discretion

of the district court. 

(citing 

).

While the district court “should keep in mind the interests of the defendant, for

Rule 41(a)(2) exists chiefly for protection of defendants,” 

should also

weigh the relevant equities and do justice between the parties in each case,

imposing such costs and attaching such conditions to the dismissal as are deemed

appropriate. 

.

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      Here, Cameron and Dow contend that the district court erred in granting

Arias’s motion for voluntary dismissal because the dismissal resulted in clear legal

prejudice to them: the loss of their statute-of-limitations defense if Arias re-files

her action in Georgia state court. We disagree that the district court abused its

discretion under the circumstances of this case.

A. Defendants’ Statute-of-Limitations Defense

      To explain why, we first consider the strength of Defendants’ statute-of-

limitations defense. If the defense lacked merit, Defendants did not even arguably

suffer any cognizable prejudice as a result of the voluntary dismissal. We begin

with a review of applicable Georgia law.

      Although Georgia law requires a process server to effect service within five

days of receipt of the complaint and summons, O.C.G.A. § 9-11-4(c)(5), it states

no time limit within which a plaintiff must seek service. Ga. Farm Bureau Mut.

Ins. Co. v. Kilgore, 

, 715 (Ga. 1995). So, as long as service is

perfected before the statute of limitations expires, “the mere time lapse between the

date of filing and the date of service is not a valid basis for dismissal.” 

internal quotation marks omitted).

      When a complaint is filed within the limitations period but service is

perfected after the limitations period ends, service relates back to the time of filing

“so as to avoid the limitation,” as long as service is timely perfected. Giles v. State

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Farm Mut. Ins. Co., 

(Ga. Ct. App. 2014) (citation and quotation

marks omitted). Although § 9-11-4(c)(5)’s five-day safe-harbor provision applies

by its language to process servers only and not to parties, service is, nevertheless,

always timely perfected if a party completes it within that period. See 

service is attempted before the expiration of the statute of limitations but

is not made within the five-day period and the defendant asserts insufficiency of

service after the statute of limitations expires, service can still be timely perfected

and relate back to the time of filing, provided that the plaintiff acts with “the

greatest possible diligence to serve the defendant from that point forward.” 6

Moody v. Gilliam, 

, 761 (Ga. Ct. App. 2006) (citation and quotation

marks omitted).

       Here, Arias attempted to complete service on Dow three different ways

before the statutory period ended on March 19, 2013: on February 28, 2013, she

sent a copy of the process to Georgia’s Secretary of State to make service on Dow

in Delaware; on March 13, 2013, by certified mail, she sent the process to Dow’s

registered agent in Delaware; and also on March 13, 2013, she arranged for the

New Castle County Sheriff’s Department to make service on Dow in Delaware.


       6
         Service is also timely perfected if the process server makes service within five days of
receipt of the summons and complaint from the clerk of court, regardless of how much time
lapses between the plaintiff’s filing of the action and the process server’s receipt of the complaint
and summons from the clerk, provided that service is accomplished within the statutory period.
See Giles, 

. In this case, however, Plaintiff—not the clerk of court—provided the
various process servers with process, apparently after Plaintiff had obtained it from the clerk.
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So it is clear that Arias attempted to perfect service on Dow within the statutory

period.

       Arias only learned that she did not perfect service on Dow through her

February and March 2013 efforts when she received the letter dated April 1, 2013,

that Georgia’s Secretary of State sent advising that Dow was registered with the

Office of the Georgia Secretary of State. Allowing for three mailing days, cf.

O.C.G.A. § 9-11-6(e), Arias could have been expected to receive the Secretary of

State’s letter—and thus notice of insufficient service—on April 4, 2013. And, the

record reflects that that very day, Arias sent the summons and complaint to the

Gwinnett County Sheriff’s Department for service on Dow’s Georgia agent. The

Sheriff’s Department then served Dow’s registered agent on April 9, 2013—within

the five-day period from its receipt of the summons and complaint for service.

Because Arias immediately delivered the summons and complaint for service upon

learning that her original service on Dow was insufficient, and then the process

server accomplished proper service within the five-day safe-harbor period, Arias

appears to have timely perfected service on Dow that relates back to the time of her

filing her complaint within the limitations period. 7



       7
          Dow asserts, “Defendants do not concede that any of Plaintiff’s service attempts were
made by authorized individuals, particularly given the numerous other flaws in her service
attempts.” This conclusory and entirely unsupported argument cannot carry the day for Dow, in
light of the fact that the record contains a notarized return of service on Dow, signed by a deputy
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       With regard to Cameron, Arias learned that her service on him was arguably

insufficient when she received Defendants’ motion to dismiss, which they filed on

April 24, 2013—a Wednesday. Allowing time for service under O.C.G.A. § 9-11-

6(e), Arias should have taken action to effect proper service by Monday, April 29,

2013. See O.C.G.A. §§ 9-11-6(a); 1-3-1(d)(3) (when the last day of the period falls

on a Saturday or Sunday, the next business day following becomes the last day of

the period).

       The record reveals that is exactly what she did. On April 29, 2013, Arias

sent the summons and complaint to the San Bernardino’s Sheriff’s Office for

service on Cameron in California. Despite four attempts by the Sheriff’s Office to

serve Cameron between May 4, 2013, and May 29, 2013—including the Sheriff’s

Office’s leaving of a note on Cameron’s door instructing him to call, and

Plaintiff’s communications in May with Cameron’s counsel about the service

attempts—the Sheriff’s Office was unable to make service on Cameron. Arias

then sought to effect service on Cameron in a third way since learning that

Cameron contested Arias’s original service efforts: she hired a private process

server and directed him to “stake out” Cameron’s residence until Cameron was




sheriff with Gwinnett County. Georgia law authorizes deputy sheriffs in the county where the
action is brought or where the defendant is found to serve process. See O.C.G.A. § 9-11-4(c)(1).
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personally served. It still took two days to accomplish service. Under these

circumstances, it appears that Cameron may have been trying to evade service.

      A defendant’s evasion of service bears on the determination of whether a

plaintiff exercised diligence in attempting to accomplish service. In Feinour v.

Ricker Co., 

(Ga. Ct. App. 2004), overruled on different grounds by

Giles, 

at n.2, for example, the plaintiff filed her case on September

28, 2000, and began service attempts on the defendant on October 2, 2000. 

Between October 2, 2000, and March 7, 2001, the defendant engaged in acts

to evade service. 

The plaintiff made several efforts to serve the

defendant, first through one sheriff’s office, then another, then through a

professional process server, and last, through a court-appointed process server,

finally serving him on March 7, 2001, after the statute of limitations had expired.

Although the trial court granted the defendant’s motion for summary

judgment based on untimely service, the appellate court reversed, concluding that

where there was “evidence that [the plaintiff’s] efforts to serve [the defendant]

were continuous and that she exercised the greatest possible diligence in light of

[the defendant’s] obvious and continued attempts to evade service,” summary

judgment for untimely service was improper. 

      This case is substantially similar to Feinour. While the Feinour plaintiff

attempted service in four different ways over a five-month period, Arias tried three

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different ways to obtain service on Cameron over a 27-day period. The first

method—through the San Bernardino Sheriff’s Office—involved four separate

attempts, and, with respect to the third method, Arias instructed the process server

to effectively remain at Cameron’s house until service was accomplished. These

efforts were comparably continuous and diligent to those of the Feinour plaintiff.

As a result, when service was finally made on Cameron on May 31, 2013, it should

have related back to the filing of the complaint before the expiration of the statute

of limitations. Thus, Defendants’ statute-of-limitations defense appears to lack

merit.

B. Precedent

         But even if we very charitably described Defendants’ statute-of-limitations

defense as potentially viable—a description that we do not endorse, the district

court still did not abuse its discretion in voluntarily dismissing the case without

prejudice because our precedent allowed it to do so. McCants v. Ford Motor Co.,

Inc., 

(11th Cir. 1986), decided nearly thirty years ago, drives the

outcome of this issue.

         In McCants, we held that, under the facts of the case, the loss of a statute-of-

limitations defense alone did not necessarily constitute per se legal prejudice

sufficient to bar a dismissal without prejudice under Rule 41. 

The

plaintiff in McCants filed a wrongful-death action under Mississippi products-

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liability law in an Alabama federal court, based on a jeep accident that occurred in

Mississippi. 

When the plaintiff originally filed suit, she did so within

the limitations period, but she sued the wrong party, A.M. General, believing it to

be the manufacturer of the jeep. 

discovered the error, the plaintiff

sought leave to amend her complaint to add Ford as a defendant, since it was the

actual manufacturer of the jeep. 

granting the plaintiff leave to

amend the complaint, and after the one-year statute of limitations had run under

Alabama law, the district court dismissed the action without prejudice. 

the plaintiff filed a second suit, this time naming Ford as a defendant.

not plead the statute of limitations in its answer but raised it in an

amended answer about eight months after the initiation of the suit and a month

before it filed its summary-judgment motion. 

The district court denied

the motion for summary judgment and, the following day, granted the plaintiff’s

motion for dismissal without prejudice. 

without prejudice

provided the plaintiff with the opportunity to refile the action in Mississippi, which

had a longer limitations period.

      On appeal, Ford argued, among other things, that it had suffered legal

prejudice when the case was dismissed without prejudice because it had lost its

statute-of-limitations defense. 

contended that the district court

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had abused its discretion in allowing the dismissal because it had failed to

acknowledge the importance of the loss of Ford’s limitation defense when the

court balanced the equities of the case. 

the district court’s granting of the plaintiff’s motion to dismiss,

stating, “[T]he likelihood that a dismissal without prejudice will deny the

defendant a statute of limitations defense does not constitute plain legal prejudice

and hence should not alone preclude such a dismissal.” 

We found

support for this view in our precedent—namely, Durham v. Florida East Coast

Railway Co., 

. 

noted that “no evidence in the record

[suggested] that [McCants] or her counsel acted in bad faith in filing this action in

Alabama or in filing it more than one year after the accident occurred.” 

Under the circumstances, we concluded that Ford could not be said to have

suffered “any plain legal prejudice other than the prospect of a second lawsuit on

the same set of facts.” 

determined that the district court did

not abuse its discretion in allowing the dismissal without prejudice because the loss

of a valid statute-of-limitations defense did not alone necessarily constitute a bar to

dismissal without prejudice. 

not require a district court to find a lack of legal prejudice

every time a defendant is potentially stripped of a statute-of-limitations defense.

Rather, McCants and its progeny hold only that the loss of a statute-of-limitations

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defense alone does not amount to per se prejudice requiring denial of a voluntary

dismissal without prejudice. A district court must look to the particular facts of the

case, including, among others, whether the plaintiff’s counsel has acted in bad

faith, and “weigh the relevant equities and do justice between the parties” when

evaluating a motion for a voluntary dismissal under Rule 41(a)(2). 

; Goodwin v. Reynolds, 

, 1219 (11th Cir. 2014). Nor is it

a “bar to a voluntary dismissal that the plaintiff may obtain some tactical advantage

over the defendant in future litigation.”     

(citing

).

      Here, based on our review of the underlying facts, we conclude that the

district court acted well within its discretion when it granted Arias’s motion for

voluntary dismissal. First, the parties here do not dispute that Arias filed her

lawsuit in Georgia state court before the two-year statute of limitations ran.

Second, as explained above, Arias acted diligently in attempting to serve Cameron

and Dow with the summons and complaint. Third, none of the facts of this case

demonstrate bad faith on the part of Arias’s counsel, a factor that should be

examined when considering a motion for voluntary dismissal without prejudice.

Fourth, Defendants’ claimed statute-of-limitations defense is weak, at best. And,

finally, the only reason that Defendants even arguably have a statute-of-limitations

defense is because they removed the case to federal court. Had the case stayed in

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Georgia court, where Arias chose to file it, there would have been no question that

she would have been able to voluntarily dismiss the case and take advantage of

Georgia’s six-month refiling provision. So Defendants effectively “created” the

very statute-of-limitations defense that they now complain that they have been

“stripped” of—a defense that did not even arguably exist until they removed the

case to federal court.

      Moreover, although Defendants suggest that Arias should not be able to

avoid the entry of summary judgment by voluntarily dismissing her action, for the

reasons that we have previously discussed, it is surely not certain that summary

judgment was appropriate. And, even if summary judgment were likely, this

circuit has declined to adopt a bright-line rule precluding a district court from

granting a Rule 41(a)(2) voluntary dismissal without prejudice when a motion for

summary judgment is pending. See 

. As we have

explained, “the mere attempt to avoid an adverse summary judgment ruling in and

of itself, particularly where there is no evidence of bad faith, does not constitute

plain legal prejudice.” 

court’s attachment of conditions to the

dismissal—requiring Arias to pay attorneys’ fees and costs incurred in this

litigation if she refiles—further weighs in favor of affirming the district court’s

voluntary dismissal of the case without prejudice.




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       Nor, as Defendants urge, is McCants inconsistent with controlling precedent

in this Circuit.8 Defendants suggest that McCants conflicts with LeCompte v. Mr.

Chip, Inc., 

(5th Cir. 1976), and Exxon Corp. v. Maryland Casualty

Co., 

(5th Cir. 1979). We disagree.

       Neither Exxon nor LeCompte considers or addresses the specific question of

whether the potential loss of a defense upon voluntary dismissal without prejudice

alone constitutes per se “prejudice” to a defendant, requiring denial of a motion for

voluntary dismissal. Rather, these cases use the term “prejudice” in a more general

sense and do not involve the potential loss of a defense upon voluntary dismissal.

In fact, in Exxon, our predecessor court did not even consider a motion for

permissive voluntary dismissal under Rule 41(a)(2). Instead, that case dealt with

dismissal as of right under Rule 41(a)(1).              And, to the extent that the Court

discussed prejudice in LeCompte, it relied on Durham v. Florida East Coast

Railway Co., 

(5th Cir. 1967). See 

.

       Durham—a case that predates both Exxon and LeCompte—is entirely

consistent with McCants. In Durham, the plaintiff sued his employer for failure to



       8
          When circuit authority is in conflict, a panel should look to the line of authority
containing the earliest case because a decision of a prior panel cannot be overturned by a later
panel. Walker v. Mortham, 

, 1188-89 (11th Cir. 1998) (citing Johnson v. City of
Fort Lauderdale, 

, 1380 n.10 (11th Cir. 1997); Robinson v. Tanner, 

, 1383 (11th Cir. 1986) (per curiam); see also 

(holding that
decisions of prior panels are binding on subsequent panels and can be overturned by the court
sitting en banc only)).
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provide a safe workplace. 

The defendant pled contributory negligence

as an affirmative defense. 

matter was called for trial, the plaintiff

contended that he had discovered new evidence and moved for leave to amend the

complaint to add a new claim under the Federal Safety Appliance Act, an act under

which the plaintiff may recover without regard to any contributory negligence. 

court denied the motion for leave to amend, prompting the plaintiff to

move to voluntarily dismiss the suit without prejudice. 

court denied

the motion and called the case for trial. 

announced that he could

not proceed with the trial of the case, the district court dismissed the action with

prejudice. 

then appealed.

      On appeal, the former Fifth Circuit emphasized that dismissing actions with

prejudice was the most severe sanction and should be imposed only when a clear

record of delay or contumacious conduct by the plaintiff exists. 

(citation

omitted). Because those circumstances did not exist in Durham, the Court opined

that the “crucial question” in determining whether voluntary dismissal should have

been granted was whether the defendant would lose any substantial right by the

dismissal without prejudice requested by the plaintiff. 

Court explained,

“[D]ismissal should be allowed unless the defendant will suffer some plain legal

prejudice other than the mere prospect of a second law suit. It is no bar to

dismissal that plaintiff may obtain some tactical advantage thereby.” 

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and quotation marks omitted). Although a voluntary dismissal would have resulted

in the defendant’s loss of its contributory-negligence defense, the Court concluded

that the record did not disclose any prejudice to the defendant upon the granting of

a voluntary dismissal, other than the annoyance of a second litigation on the same

subject. 

So the Court reversed the district court’s dismissal with

prejudice and remanded the case for dismissal of the complaint without prejudice.

our subsequent decision in McCants, where we concluded

that the loss of a statute-of-limitations defense alone does not constitute per se

prejudice requiring denial of a motion for voluntary dismissal.           Indeed, our

decision in McCants cited to and relied upon Durham. In short, McCants does not

violate our prior-precedent rule, and we are bound to follow it.

      We also respectfully reject Defendants’ contention that McCants should be

limited to its facts. Defendants suggest that McCants should apply to only those

situations where a defendant delays in raising the affirmative defense that it hopes

to preserve against a voluntary dismissal. Because Defendants here raised their

statute-of-limitations defense in a motion to dismiss one week following their

removal of the case to federal court, they assert that McCants should not apply.

      But the way in which we framed the issue in McCants reveals that the timing

of the defendant’s assertion of the defense did not drive the result in the case. As

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we described it, the issue in McCants was simply “whether it constitutes an abuse

of discretion for a district court to dismiss without prejudice an action that is time-

barred as brought, where the purpose or effect of such dismissal is to allow the

plaintiff to refile the action in a place or manner in which it is not similarly

. Nor did we limit our holding that “the loss of a valid

statute of limitations defense [does not] constitute a bar to a dismissal without

prejudice,” 

to circumstances where defendants delay in raising their

statute-of-limitations defense. And we decline to so restrict McCants today.

        We recognize, as Defendants point out, that other circuits have found clear

legal prejudice to exist when a Rule 41(a)(2) dismissal is granted in the face of a

valid statute-of-limitations defense. See Wojtas v. Capital Guardian Trust Co.,

, 927-28 (7th Cir. 2007); Grover ex rel. Grover v. Eli Lilly & Co., 

, 719 (6th Cir. 1994); Metro. Fed. Bank of Iowa F.S.B. v. W. R. Grace &

Co., 

, 1262 (8th Cir. 1993); Phillips v. Illinois Cent. Gulf R.R., 

, 987 (5th Cir.1989). And we acknowledge that both the Fifth and Eighth

Circuits have expressly announced their disagreement with our decision in

McCants. See 

; Metro. Fed. Bank of 

.

        But we are bound by the prior-precedent rule to follow McCants. See Smith

v. GTE Corp., 

, 1303 (11th Cir. 2001) (citation and quotation marks

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omitted) (“Under our prior precedent rule, a panel cannot overrule a prior one’s

holding even though convinced it is wrong.”). So even if we disagreed with it, we

would nonetheless be required to be faithful to it. See 

not disagree with McCants, though. Rule 41(a)(2) contemplates that

the district court will weigh the equities in determining how to rule on a motion for

voluntary dismissal. The equities of this case—including the dubious merit of

Defendants’ statute-of-limitations defense, the consistent diligence of Arias, the

apparent attempts by Cameron to evade service, and the fact that Defendants could

not even arguably invoke their statute-of-limitations defense had they not removed

the case from Arias’s chosen forum court in the first place—provide a good

example of why a per se rule prohibiting district courts from allowing dismissals

without prejudice any time that a statute-of-limitations defense might possibly be

lost could significantly undermine the district court’s ability to balance the equities

in ruling on a motion for voluntary dismissal under Rule 41(a)(2).

      The fact that McCants does not render loss of a statute-of-limitations defense

per se prejudice does not mean that a party that could suffer the loss of such a

defense upon a voluntary dismissal without prejudice will necessarily be at the

losing end of a motion for voluntary dismissal without prejudice. Rather, McCants

allows for a motion for voluntary dismissal without prejudice to be denied if a

statute-of-limitations defense could be lost, provided that consideration of all of the

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equities in the case warrant such a conclusion. We think that this is the correct

formulation of what Rule 41(a)(2) requires.

      Finally, based on all of these considerations, we conclude that the district

court did not abuse its discretion when it granted Arias’s motion for voluntary

dismissal without prejudice under Rule 41(a)(2).

                                          V.

      In sum, we conclude that it is unlikely that Defendants had a meritorious

statute-of-limitations defense in the first place. But even if they did, in view of the

equities, the district court did not abuse its discretion in granting Arias’s motion for

voluntary dismissal without prejudice pursuant to Rule 41(a)(2). We therefore

affirm the order of the district court.

      AFFIRMED.




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