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Davis v. Lakay Enterprises, Inc.

United States District Court, M.D. Georgia, Macon Division

April 11, 2018

EMMITT DAVIS, Plaintiff,



         Defendant 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 DENIED.


         On 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.[1] 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.

         The 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).

         “The 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).

         Lakay 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.

         Moreover, 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.

         For 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.


         Lakay 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).

         The 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).

         A. Facts[2]

         Davis 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.

         Prior 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. ¶ 16.

         Several 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.

         During 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.[3]

         Nevertheless, 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.

         Despite 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.

         B. Sex Discrimination and ...

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