United States District Court, M.D. Georgia, Columbus Division
D. LAND CHIEF U.S. DISTRICT COURT JUDGE
Auto and Home Insurance Company filed an action for
declaratory judgment against Richard Gribbins and Kendall
Cochran to determine its duties to Cochran under her
insurance policy. Unitrin now moves to voluntarily dismiss
the action without prejudice (ECF No. 15). Cochran and
Gribbins oppose dismissal and have filed motions for summary
judgment (ECF Nos. 18 & 22) and motions to amend their
pleadings to add counterclaims against Unitrin concerning the
coverage issue (ECF Nos. 21 & 24).
41(a)(1) of the Federal Rules of Civil Procedure allows a
plaintiff to unilaterally dismiss an action without prejudice
as long as opposing parties have not yet filed an answer or
motion for summary judgment. Fed.R.Civ.P. 41(a)(1).
Otherwise, Rule 41(a)(2) states that “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). A dismissal by Court order is without prejudice
unless the Court specifies otherwise. Id. Here,
Unitrin seeks to dismiss its action under Rule 41(a)(2).
“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.'” Arias v. Cameron, 776 F.3d
1262, 1268 (11th Cir. 2015)(quoting McCants v. Ford Motor
Co., Inc., 781 F.2d 855, 856 (11th Cir. 1986)).
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. In deciding motions for voluntary dismissal
under Rule 41(a)(2), courts must look to the particular facts
of the case and “weigh the relevant equities and do
justice between the parties . . . imposing such costs and
attaching such conditions to the dismissal as are deemed
appropriate.” Id. at 1269. While striking this
balance, the Court must “consider the crucial question
of whether ‘the defendant [would] lose any substantial
right by the dismissal.'” Id. at 1268
(alteration in original)(quoting Pontenberg v. Boston
Sci. Corp., 252 F.3d 1253, 1255 (11th Cir. 2001)(per
curiam)). The Court should also consider “whether the
plaintiff's counsel has acted in bad faith.”
Id. at 1272.
Court finds that Defendants will not suffer clear legal
prejudice from the dismissal and that Unitrin's counsel
did not act in bad faith. Accordingly, Unitrin's motion
to dismiss the action without prejudice is granted.
Court does not find that an extensive explanation of
today's ruling is necessary. The Court's rationale is
straightforward. Unitrin did not act in bad faith. It clearly
had the right to seek a declaration of its coverage rights.
And even if Unitrin had evidence regarding its duty to defend
and indemnify Cochran prior to filing suit, it nevertheless
had the right to engage in discovery to either confirm that
evidence or contradict it. Specifically, Unitrin had the
right to nail down the facts relevant to that determination
by taking depositions under oath. The Court further notes
that Unitrin is providing a complete defense to Cochran in
the underlying action, and, therefore, the only coverage
issue remaining is whether it has a duty to indemnify Cochran
for any judgment entered against her in the underlying
action. That issue is premature until a judgment, if any, is
rendered against Cochran. Thus, it would be a waste of time
for this Court to decide the indemnity coverage question on
the merits when it may be unnecessary depending on the
outcome of the underlying litigation.
Court also finds that Defendants exaggerate their prejudice,
particularly given that they voluntarily chose to incur the
added expense of filing summary judgment motions
after Unitrin filed its motion to dismiss the
action. Additionally, the Court finds that it is not
necessary to place conditions on dismissal at this time. The
Court agrees that Defendants should not have to incur the
same expenses that they incurred in this action if a future
action is filed in which the question of coverage is
contested. But the Court knows of no reason why any party
would need to duplicate those expenses in some future action.
Therefore, the Court finds no reason today to place
conditions on dismissal by entering an advisory order that
applies to some future possibility. The judge managing that
future litigation, if there is any, can determine where the
equities lie as to who should be burdened with the cost of
duplicative discovery. See Fed. R. Civ. P.
41(d)(“If a plaintiff who previously dismissed an
action in any court files an action based on or including the
same claim against the same defendant, the court . . . may
order the plaintiff to pay all or part of the costs of that
motion to dismiss is granted (ECF No. 15), and this action is
dismissed in its entirety. All other pending motions are
 Defendants argue that Unitrin should
be judicially estopped from arguing that the action is
premature. However, to grant judicial estoppel, “it
must be established that . . . allegedly inconsistent
positions were made under oath in a prior proceeding.”
Transamerica Leasing, Inc. v. Inst. of London
Underwriters, 430 F.3d 1326, 1335 (11th Cir. 2005).
Defendants have not directed the Court to any prior
proceedings where Unitrin took a ...