United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE
Lakay Enterprises, Inc. has moved for summary judgment. Doc.
11. Additionally, Plaintiff Emmitt Davis has moved to
voluntarily dismiss his complaint pursuant to Fed.R.Civ.P.
41(a)(2). Doc. 18. For the reasons stated below, Lakay's
motion is GRANTED, and Davis's motion is
VOLUNTARY MOTION TO DISMISS
December 13, 2016, Davis filed this lawsuit against his
former employer, Lakay, alleging violations of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq., along with other state law
claims. See generally Doc. 1-1. On
January 10, 2017, Lakay removed the case to this Court from
the Superior Court of Peach County, Georgia. Doc. 1. The
parties have completed discovery, and Lakay has filed a
motion for summary judgment, which has been fully briefed.
But Davis now moves to voluntarily dismiss his complaint
without prejudice pursuant to Rule 41(a)(2), alleging that he
can no longer financially afford to prosecute this action.
See generally Doc. 18. Lakay opposes the dismissal.
See generally Doc. 19.
Eleventh Circuit has stated:
A voluntary dismissal without prejudice is not a matter of
right. Zagano v. Fordham University, 900 F.2d 12, 14
(2d Cir.1990); Fed.R.Civ.P. 41(a)(2). Although we have said
that in most cases a voluntary dismissal should be allowed
unless the defendant will suffer some plain prejudice other
than the mere prospect of a second lawsuit, see Durham v.
Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th
Cir.1967), the decision whether or not to grant such a
dismissal is within the sound discretion of the district
court and reviewable only for abuse of discretion, see
LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th
Cir.1976). And, when exercising its discretion in considering
a dismissal without prejudice, the court should keep in mind
the interests of the defendant, for Rule 41(a)(2) exists
chiefly for protection of defendants. See id.
Fisher v. Puerto Rico Marine Mgmt., Inc., 940 F.2d
1502, 1502-03 (11th Cir. 1991).
crucial question to be determined is, would the defendant
lose any substantial right by the dismissal.”
Pontenberg v. Boston Sci. Corp., 252 F.3d 1253, 1255
(11th Cir. 2001) (citation omitted). The Eleventh Circuit has
not provided specific factors to be considered, but courts
focus on whether a defendant would suffer “plain
prejudice” or merely the “prospect of a second
lawsuit.” Id. When denying a plaintiff's
request for dismissal, courts “weigh the relevant
equities and do justice between the parties.”
See, e.g., Stephens v. Ga. Dep't of
Transp., 134 Fed.Appx. 320, 323 (11th Cir. 2005)
(quoting Potenberg, 252 F.3d at 1255-56).
argues dismissal without prejudice would be improper in light
of time and resources expended litigating this action, and
points out that Davis and his attorney have entered into a
contingency-fee arrangement in which Davis is not required to
pay any fees unless he is awarded damages or a settlement for
his claim. Doc. 19 at 4-7. In his reply, Davis does not
dispute this assertion, but, instead, he only contests
Lakay's arguments that if Davis's motion is granted,
it should be with prejudice or that conditions should be
imposed on the dismissal. See generally Doc. 21.
Thus, from the response and reply, Davis's asserted
reasons for dismissal in his motion appear to be
disingenuous. Rather, it appears the true intention behind
Davis's motion is to avoid an unfavorable ruling on
Lakay's motion for summary judgment.
as Lakay argues, Lakay would be prejudiced by dismissal
because it has expended significant time and resources in
this litigation. Doc. 19 at 5-7. As stated, the parties have
completed discovery, including Lakay's deposition of both
Davis and Lakay's corporate representative. Docs. 11-10;
11-12. And Davis's argument that there has been nothing
out of the ordinary about discovery, like his stated reason
for dismissal, is disingenuous. Yes, there were no extensions
of time for discovery. But twice the Court needed to hold a
hearing regarding discovery disputes, which were in no small
part the fault of Davis's counsel and required Lakay to
expend time and resources. Docs. 7; 8. The Court held a
telephone conference on May 25, 2017 and a June 2, 2017
hearing that the parties were required to attend.
Id. Indeed, after the hearing, the Court was
compelled to order Davis's counsel to “give
complete, verified responses to Defendant's discovery
requests.” Doc. 8. And, as stated, in addition to the
time and resources expended in discovery, Lakay has filed a
summary judgment motion that has been fully briefed.
these reasons, the Court finds Lakay would suffer prejudice
if the complaint were dismissed without prejudice pursuant to
Rule 41(a)(2). Accordingly, Davis's motion to dismiss
(Doc. 18) is DENIED.
SUMMARY JUDGMENT MOTION
has moved for summary judgment on all of Davis's claims.
A court shall grant summary judgment “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). In determining whether a
genuine dispute of material fact exists, “[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986) (citation omitted). A material fact is any fact
relevant or necessary to the outcome of the suit.
Id. at 248. And a factual dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the non[-]moving party.”
Id. (citation omitted). Accordingly, “the mere
existence of a scintilla of evidence in support of the
position will be insufficient; there must be evidence on
which the jury could reasonably find for the non-moving
party.” Johnson v. Bd. of Regents of Univ. of
Ga., 263 F.3d 1234, 1243 (11th Cir. 2001) (citation and
punctuation marks omitted).
party moving for summary judgment bears the burden to show
that there is no issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The movant may make
this showing by “citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials, ” or by showing that the non-movant
cannot produce admissible evidence to support the issue of
material fact. Fed.R.Civ.P. 56(c)(1). If the movant meets
this burden, the non-moving party must produce evidence
showing that an issue of material fact does exist.
Celotex Corp., 477 U.S. at 324. To do so, the
non-moving party must “go beyond the pleadings”
and identify “specific facts showing a genuine issue
for trial.” Id.; see also Fed. R.
Civ. P. 56(e)(2)-(3). However, “[c]redibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge.” Anderson, 477 U.S. at
255 (citation omitted).
began working for Lakay as a cement finisher in January,
2013. Docs. 11-4 ¶ 8; 11-10 at 61:6-14. While working
for Lakay, he worked on an all-male work crew. Docs. 11-2
¶¶ 20-21; 11-4 ¶ 12. In September, 2013, Davis
met with Billy Crump, the president and CEO of Lakay, to
complain about harassment from a coworker, Ty Beck. Docs.
11-4 ¶ 14; 11-12 at 52:14-19 110:20-113:6. Davis
complained he was subjected to homophobic slurs, taunting,
and unwanted touching, including Beck trying to “fight
[Davis] and tr[ying] to feel on [Davis].” Docs. 11-4
¶ 14; 11-10 at 112:20-114:10. Davis provided no other
details to Crump. Docs. 11-10 at 90:1-16; 11-12 at 114:3-10.
to Davis's complaint, neither Crump nor Gray had received
complaints concerning Beck from any other employee. Docs.
11-4 ¶ 13; 11-6 ¶ 5. Crump met with Beck, who
admitted “he flicked [Davis] on the chest near the
pocket of his shirt and lightly tapped [Davis] on his rear
end” but claimed it “was all in good fun and was
not intended to be harassing.” Doc. 11-4 at ¶ 15.
Still, Crump admonished him for the behavior, telling him
that he would be terminated if it continued. Id.
days later, on September 27, 2013, while at a job site, Beck
came to Davis “fussing and cussing, asking [Davis] why
did [Davis] tell [Crump] about him touching and grabbing on
[Davis].” Doc. 11-10 at 89:12-25, 99:2-12. In his
deposition, Davis admitted that Beck did not actually touch
him that day but did confront him and threaten to “whup
[Davis's] ass.” Id. at 86:1-23, 89:12-25,
91:17-19, 93:18-20, 98:22-99:12, 100:10. Regardless, Davis
called the Houston County Sheriff's Department to report
a “simple assault slash battery” and reported to
the 911 dispatcher that Beck had called him “gay,
” although in his deposition he could not recall if
this was the case. Id. at 84:17-19, 86:1-23,
93:2-25. Crump arrived at the scene around the same time as a
sheriff's deputy, and, after the parties had calmed down,
the officer told Davis he could charge Beck at the courthouse
if he so wished. Docs. 1-1; 11-4 ¶ 21; 11-12 at 117:1-5.
Meanwhile, Crump told both Beck and Davis to go home for the
weekend and that they would discuss the incident the
following Monday. Docs. 11-4 ¶¶ 22-23; 11-10 at
101:21-25; 11-12 at 118:19-25.
their meeting that following Monday, Crump assigned Beck and
Davis to different work crews. Docs. 11-4 ¶ 23-25; 11-6
at ¶¶ 7; 11-10 at 109:2-6; 11-12 at 118:21-119:1.
Davis claims that at the meeting, Crump told him, “If
you go to court, don't come back.” Doc. 11-10 at
102:13-16. But Crump denies making that comment, and,
although Davis believed others were around to hear that
comment, including Malcolm Radford, Gonzalo Lopez, and Larry
Perry, those individuals testified that they did not recall
this comment. Docs. 11-4 ¶ 24; 11-6 ¶ 11; 11-7
¶ 7; 11-8 ¶ 5; 11-9 ¶ 5; 11-10 at
102:21-103:8; 11-12 at 150:16-151:22.
a few days after the September 30 meeting with Crump and
Beck, Davis filed criminal simple battery charges against
Crump, which Crump was notified of on October 3, 2013. Docs.
11-4 ¶ 26-26, at 17; 11-10 at 103:17-106:24; 11-12 at
119:16-120:6. Davis claims he accidentally filed his claim
against Crump-that his daughter put Crump's name where
Beck's name was supposed to be listed. Doc. 11-10 at
105:21-106:7. But the charges were dismissed for want of
prosecution after Davis failed to appear at a November 21,
2013 hearing. Docs. 11-4 ¶ 27, at 17; 11-12 at
119:16-120:6. Meanwhile, Davis also filed charges against
Beck. Doc. 11-10 at 108:11-108:23, 114:14-21.
filing these charges against Crump and Beck, of which there
was no discussion between Davis and anyone at Lakay, Davis
continued to work for Lakay, with no complaints about Beck,
until February, 2014. Docs. 11-4 ¶¶ 24-25, 27, 29;
11-6 ¶¶ 7-8; 11-10 at 109:11-17. On February 20,
2014, Davis missed work to attend a hearing regarding his
case against Beck and, after that day, never returned to work
for Lakay. Doc. 11-10 at 118:5-17. Davis did not tell anyone
at Lakay that he would miss work on February 20, never
informed anyone that he would not be returning to work, and,
other than Crump's alleged threat five months earlier,
was not told that he could not return. Docs. 11-4
¶¶ 27, 29, 33; 11-6 ¶ 11; 11-10 at 118:5-17.
Indeed, both Gray and Crump only learned that Davis was no
longer working for Lakay when they spoke to him later, after
noticing his absence, and both state in their affidavits that
they tried to convince him to keep working with Lakay. Docs.
11-4 ¶¶ 30-32; 11-6 ¶¶ 9-10; 11-12 at
157:11-158:13. However, Davis did not return to Lakay and
claims that he assumed, based on Crump's alleged threats
from five months prior, he could no longer return because he
attended the February 20 hearing. Doc. 11-10 at 117:4-118:14.
Sex Discrimination and ...