Filed: Feb. 12, 2019
Latest Update: Feb. 12, 2019
Summary: ORDER BRIAN A. JACKSON , District Judge . Before the Court is the Motion for Voluntary Dismissal (Doc. 45) filed by pro se Plaintiff Tony Cormier. Voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2) is improper at this stage because it would cause Defendant Ethicon, Inc. to suffer "plain legal prejudice." See Elbaor v. Tripath Imaging, Inc., 279 F.3d 314 , 319 (5th Cir. 2002). Specifically, Ethicon has raised a statute-of-limitations defense in a Motion for Judgment
Summary: ORDER BRIAN A. JACKSON , District Judge . Before the Court is the Motion for Voluntary Dismissal (Doc. 45) filed by pro se Plaintiff Tony Cormier. Voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2) is improper at this stage because it would cause Defendant Ethicon, Inc. to suffer "plain legal prejudice." See Elbaor v. Tripath Imaging, Inc., 279 F.3d 314 , 319 (5th Cir. 2002). Specifically, Ethicon has raised a statute-of-limitations defense in a Motion for Judgment o..
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ORDER
BRIAN A. JACKSON, District Judge.
Before the Court is the Motion for Voluntary Dismissal (Doc. 45) filed by pro se Plaintiff Tony Cormier.
Voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2) is improper at this stage because it would cause Defendant Ethicon, Inc. to suffer "plain legal prejudice." See Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 319 (5th Cir. 2002). Specifically, Ethicon has raised a statute-of-limitations defense in a Motion for Judgment on the Pleadings, Plaintiff concedes that the defense has merit, and Ethicon would potentially lose the defense if this action is voluntarily dismissed without prejudice. See Hyde v. Hoffmann-La Roche, Inc., 511 F.3d 506, 511 (5th Cir. 2007).
Ethicon has "exerted significant time and effort" litigating this sixteen-month-old case. See Hartford Acc. & Indem. Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990). And the timing of Plaintiff's motion—filed two weeks after Ethicon raises a dispositive statute-of-limitations defense—suggests that Plaintiff merely seeks to avoid an expected adverse result. See Oxford v. Williams Co., 154 F.Supp.2d 942, 951 (E.D. Tex. 2001).
Accordingly,
IT IS ORDERED that the Motion for Voluntary Dismissal (Doc. 45) filed by pro se Plaintiff Tony Cormier is DENIED.
