JANE J. BOYLE, District Judge.
Before the Court are a litany of dispositive and nondispositive motions:
For the reasons stated below, the Court
This dispute involves the publication of an allegedly defamatory and misleading book by Defendants
Instead of filing a response in opposition to Defendant BenBella's Rule 12(b)(6) Motion to Dismiss, Plaintiff—conceding that if the book was indeed published on September 19, 2017, Texas's one-year statute of limitations would effectively bar his defamation-based claims—filed a Motion for Voluntary Dismissal under Federal Rule of Civil Procedure 41(a)(2) on March 11, 2019, seeking a dismissal from this Court of the entire case without prejudice. Doc. 19, Pl.'s Mot. to Dismiss, 1. That very same day Defendant BenBella filed another Motion to Dismiss under the Texas Civil Practices & Remedies Code § 27.001, et seq.—also known as Texas's anti-SLAPP statute—arguing that Plaintiff's lawsuit was aimed at chilling Defendants' speech and thus implicates their First Amendment rights and is subject to dismissal on this ground as well. See generally Doc. 20, Def's Anti-SLAPP Mot. Having been fully briefed on the Motion for Voluntary Dismissal, the Court finds that it is most just and expeditious to rule on Plaintiff's Motion for Voluntary Dismissal and thus the Court focuses on this Motion below.
Because Defendant BenBella has filed an Answer
First, "the district court should . . . ask whether an unconditional dismissal will cause the non-movant to suffer plain legal prejudice." Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002). If no legal prejudice exists, the court should grant the motion "absent some evidence of abuse by the movant." Id. Plain legal prejudice exists if dismissal would effectively strip the defendant from a defense that would otherwise be available—e.g., a statute of limitations defense. Ikospentakis, 915 F.2d at 177-78 (discussing Phillips, 874 F.2d at 984-87).
Here, Defendant BenBella objects to Plaintiff's Motion and argues that dismissal under Rule 41(a)(2) would be prejudicial in part because it would lose its one-year statute of limitations defense Texas Civil Practices & Remedies Code. Therefore, Plaintiff's Motion to Strike (Doc. 27) is
Despite Plaintiff's argument, the Court finds that the one-year statute of limitations is a viable defense that would bar Plaintiff's defamation-based claims. The book at issue was published in print and in digital form on September 17, 2017. Doc. 11, Def.'s App'x, 289. Plaintiff's Complaint is devoid of any allegations that the book was altered or republished at a later date, and instead only raises this argument without any support in his Reply. See Martin v. Local 556, Transp. Workers Union of Am., AFL-CIO, 2016 WL 2983726, at *1 (N.D. Tex. May 23, 2016) ("th[e] [Northern District] has long declined to consider arguments raised for the first time in a reply brief"). Thus, the statute of limitation for libel claims based on the September 2017 publication date was past by the time Plaintiff filed his Complaint on December 20, 2018. Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 142-43 (5th Cir. 2007) (holding that Texas applies a "single publication rule" to mass media publications such as books where the statute of limitation period begins to run on the date the publication is complete).
Plaintiff's attempt to now argue in his Reply that the statute of limitations defense does not apply based on a lack of discovery or a purported republication date is disingenuous based on what he argued in his original Motion. See Doc. 19, Pl.'s Mot. to Dismiss, 1. First, although the Court finds that the one-year statute of limitations defense in this case is viable, "whether the defense will ultimately be successful is not the appropriate inquiry." See Elbaor, 279 F.3d at 319 (citing Ikospentakis, 915 F.2d at 179). A plaintiff's "potential ability to plead around the statute of limitations is irrelevant." Id. Thus, the lack of discovery affects the success, not the potential availability of a statute of limitations defense. And allegations of republication were not raised in the Complaint or his Motion to Dismiss nor does Plaintiff cite any material to support his republication allegation. Doc. 30, Pl.'s Reply, 2. Because the Court finds that the one-year statute of limitations is a viable defense that would bar Plaintiff's defamation-based claims, the question becomes whether an unconditional dismissal from this Court in light of this finding would amount to plain legal prejudice.
The seminal case in the Fifth Circuit discussing when clear legal prejudice to a defendant bars an involuntary dismissal without prejudice is Phillips v. Illinois Central Gulf Railroad. In that case, the Fifth Circuit found that the district court's refusal to dismiss the plaintiff's case without prejudice under Rule 41(a)(2) was proper because the plaintiff sought dismissal in part so that he could re-file in a jurisdiction where the statute of limitations would not bar his claims. Phillips, 874 F.2d at 985-88.
Although in this case Plaintiff does not disclose where or if he plans to re-file his claims, Plaintiff only moved to dismiss his case after he realized the statute of limitations issue, and in his Motion he effectively concedes that many of his claims are time-barred and provides this fact as the only reason for dismissing his case. See Doc. 19, Pl.'s Mot. to Dismiss, 1 ("with the information set forth in Defendants' Motion to Dismiss and Appendix in mind, specifically the Copyright Registration from the U.S. Copyright Office listing a publication date of September 19, 2017, . . . Cox has decided to voluntarily dismiss this case."). However, in his Reply, Plaintiff states that "[w]hether Plaintiff Cox decides to and will be able to file another Complaint is . . . purely speculative at this point." Doc. 30, Pl.'s Reply, 2. Regardless of the fact that the Court does not know where or if Plaintiff seeks to bring his claims again, the Fifth Circuit has "decline[d] to adopt a rule that allows a movant to garner a dismissal [without prejudice] by simply refusing to disclose the jurisdiction where they intend to re-file." Elbaor, 279 F. 3d at 319. Moreover, the Court is reasonable in inferring that Plaintiff is seeking voluntary dismissal without prejudice in order to circumvent Defendants' statute of limitations defense based on the statements made in his Motion. Thus, the Court finds that Defendants have shown that they would suffer plain legal prejudice as to certain claims
Second, "[i]f the district court concludes that granting the motion unconditionally will cause plain legal prejudice, it has two options, it can deny the motion outright or it can craft conditions that will cure the prejudice." Elbaor, 279 F.3d at 317-18. The Fifth Circuit as well as other sister courts have held that one of the proper conditions is that district courts can "convert" a motion for Rule 41(a)(2) dismissal without prejudice, granting it with prejudice. Id. at 320 (collecting cases from other circuits). Those courts reached that conclusion "reasoning either that the district is authorized to do so as a condition by the `terms and conditions' language in the statute or that the authority is implicit in the `[u]nless otherwise specified' language of the statute." Id. However, although district courts are given "a great deal of leeway in crafting conditions to dismissal, the district court must be careful to craft conditions that are not overbroad." Id. (citing Le Compte v. Mr. Chip, Inc., 528 F.2d 601, 604-05 (5th Cir. 1976) ("It seems, therefore, that in ruling on motions for voluntary dismissals, the district court should impose only those conditions which will alleviate the harm caused to the defendant.")).
For example, the Fifth Circuit in Elbaor found that the district court did not abuse its discretion as to the dismissal of some claims when it issued an order converting the plaintiff's voluntary dismissal without prejudice, to one with prejudice, because an unconditional dismissal would have stripped the defendants of a viable statute of limitations defense as to those claims. Id. at 316, 318. However, the Fifth Circuit also found that the district court abused its discretion in dismissing some of plaintiff's claims with prejudice because the defendants did not demonstrate that they would be prejudiced by the unconditional dismissal of all claims. Id. at 320.
As discussed above, the Court finds that Defendants have not shown that they would suffer plain legal prejudice by the unconditional dismissal of Plaintiff's claims for misappropriation of name or likeness and for intentional infliction of emotional distress to the extent the claim is not based on defamatory conduct.
For the above-stated reasons, the Court
