The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This case presents the interesting and rarely encountered issue
of when a plaintiff may discontinue an action with prejudice in
the face of opposition. Pending before the Court are motions by
the pro se plaintiff William P. Brown ("Plaintiff"), and
defendant Eugene Brosnan for voluntary dismissal. Plaintiff
requests that the action be dismissed in its entirety with
prejudice and without costs to any party. Brosnan requests that
the Court voluntarily dismiss his counterclaim without prejudice
and seeks sanctions against the Plaintiff.
On July 10, 2003, the Plaintiff commenced this action against
his spouse Sergeant Jane B. Brown, and Eugene Brosnan
(collectively the "Defendants"), along with Undersheriff Donald
Sullivan, Sheriff Alfred Tisch, and the County of Suffolk
alleging, among other things, unlawful search and seizure,
malicious abuse of process, larceny, forgery, endangering the
welfare of a child, intentional infliction of emotional distress,
and negligence. On July 25, 2003, the Plaintiff filed an amended
complaint. On August 14, 2003, the Defendants filed a motion to
dismiss, which was denied by the Court on November 7, 2003. On
January 5, 2004, the Defendants filed an answer to the amended
complaint and a counterclaim. On February 11, 2004, the Plaintiff
filed an answer to the Defendants counterclaim. On March 2, 2004,
the Plaintiff attempted to withdraw his complaint but the request
was returned by the Court for his failure to comply with local
rules. On March 17, 2004, the Plaintiff advised the Court that he
wished to withdraw from the action, and the Court recommended
that the parties file a stipulation of discontinuance.
Thereafter, it appears that the Plaintiff and the defendant
Brosnan could not reach an agreement on whether to dismiss action
with or without prejudice, which is the subject of the dispute
presently before the Court.
On June 23, 2004, both parties submitted motions for voluntary
dismissal. The Plaintiff insists on dismissal with prejudice, so
that he may comply with a settlement agreement between the
Plaintiff and defendant Brown, in resolution of a matrimonial
action before the New York Supreme Court. The terms of the
agreement required the Plaintiff to withdraw this action with
prejudice and refrain from filing any similar action. Brosnan
opposes dismissal with prejudice in order to preserve his right
to pursue his counterclaims alleging malicious prosecution and
abuse of process in State court. The Plaintiff declines to agree
to dismissal unless it is with prejudice. The Court will now
address each request.
Generally, a plaintiff may voluntarily dismiss a claim without
leave of court before the defendant serves an answer or a motion
for summary judgment. Fed.R. Civ. P. 41(a)(1). Where, as here, a
defendant has answered the complaint, a plaintiff may no longer
dismiss an action as a matter of right. See D'Alto v. Dahon
California, Inc., 100 F.3d 281, 283 (2d Cir. 1996). Under such
circumstances, the provisions of Rule 41(a)(2) apply, which
[A]n action shall not be dismissed at the plaintiff's
instance save upon order of the court and upon such
terms and conditions as the court deems proper. If a
counterclaim has been pleaded by a defendant prior to
the service upon the defendant of the plaintiff's
motion to dismiss, the action shall not be dismissed
against the defendant's objection unless the
counterclaim can remain pending for independent
adjudication by the court. Unless otherwise specified
in the order, a dismissal under this paragraph is
Fed.R. Civ. P. 41(a)(2). These same rules are also apply to the
voluntary dismissal of counterclaims. See Fed.R. Civ. P.
In this case, Brosnan raised the counterclaims of malicious
prosecution and abuse of process before the Plaintiff filed his
motion to voluntarily dismiss. Thus, the first question before
the Court is whether the "counterclaim[s] can remain pending for
independent adjudication by the court." Fed.R. Civ. P. 41(a)(2).
If the answer is yes, then the Court may proceed to determine
whether the plaintiff should be permitted to dismiss the action.
On the other hand, if the counterclaims cannot exist alone, the
Court is precluded from allowing the action to be dismissed over
the objection of a defendant.
Brosnan's counterclaims arise under New York law, and by
themselves, cannot be adjudicated by the Court without a pending
federal claim. As stated in Rule 41(a)(2), if a defendant's
counterclaims cannot stand alone the Court is precluded from
allowing the action to be dismissed. However, the fact that the
counterclaims cannot stand alone does not end the Court's
inquiry. A district court may dismiss a claim sua sponte if the
court believes it to be frivolous. See Fitzgerald v. First
East Seventh Street Tenants Corp., 221 F.3d 362, 363-64 (2d Cir.
2000) ("[D]istrict courts are especially likely to be exposed to
frivolous actions and, thus, have a great need for inherent
authority to dismiss such actions quickly in order to preserve
scarce judicial resources."). A claim "is frivolous where it
lacks an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed.2d 338
(1989). Courts also have the power to dismiss without leave to
amend or replead in "extraordinary circumstances, such as where . . .
the substance of the claim pleaded is frivolous on its
face. . . ." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)
(citing Moorish Science Temple of Am., Inc. v. Smith,
693 F.2d 987, 990 (2d Cir. 1982)). In the interest of judicial economy,
the Court will examine whether Brosnan's counterclaims are
meritorious, and thereby warrant forcing the Plaintiff into
litigating an action that he seeks to withdraw.
In order to prevail in an action for malicious prosecution
under New York law, a claimant must show that a previous action
was initiated with malice, without probable cause to believe it
can succeed, and that it ended in failure or, in other words,
terminated in favor of the party now claiming malicious
prosecution. See Engel v. CBS, Inc., 145 F.3d 499, 502 (2d
Cir. 1998); O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir.
1996) (citing Broughton v. State of New York, 37 N.Y.2d 451,
457, 335 N.E.2d 310, 314, 373 N.Y.S.2d 87, 94 (1975)). In
addition, if the action was a civil action, as opposed to a
criminal action, the claimant must prove a special injury,
namely, interference with person or property that is beyond the
ordinary burden of defending a lawsuit. Engel, 145 F.3d at 502.
An abuse of process claim has three essential elements: (1)
regularly issued process, either civil or criminal, (2) an intent
to do harm without excuse or justification, and (3) use of the
process in a perverted manner to obtain a collateral objective.
Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466,
469 N.E.2d 1324 (1984). In Curiano, the New York Court of Appeals
held that the institution of a civil action by summons and
complaint is not considered "regularly issued process" capable of
being abused. Id. at 116-17, 469 N.E.2d at 1326,
480 N.Y.S.2d at 468; PSI Metals, Inc. v. Firemen's Ins. Co., 839 F.2d 42, 43
(2d Cir. 1988). Like malicious prosecution, a party "must allege
and prove actual or special damages in order to recover." Bd of
Ed. of Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom
Teachers Assoc., Inc., 38 N.Y.2d 397, 405, 380 N.Y.S.2d 635,
343 N.E.2d 278 (1975); see, e.g., Jacques v. DiMarzio, Inc.,
216 F. Supp.2d 139, 142 (E.D.N.Y. 2002); Honzawa v. Honzawa,
268 A.D.2d 327, 701 N.Y.S.2d 411, 413 (1st Dep't 2000).
The Court finds that Brosnan's counterclaims are utterly devoid
of any factual or legal basis. The answer pleads a counterclaim
for "Malicious Prosecution (Bad Faith Litigation)," (Defs.'
Answer ¶¶ 11-21), and all of the allegations relate solely to the
commencement of the present civil lawsuit. A claim of malicious
prosecution cannot be base on a pending proceeding. Likewise, a
claim for abuse of process cannot lie solely on the commencement
of a civil action. Furthermore, Brosnan does not allege any
special damage beyond the normal burden of defending the instant
lawsuit. The damages that Brosnan claims are directly related to
the present lawsuit, and only include bare allegations of
emotional distress, pain, and suffering. Thus, it appears that
Brosnan's counterclaim is utterly frivolous on its face and
warrants dismissal without leave to amend.
Now that the counterclaims will no longer be pending, the Court
can determine whether the plaintiff is entitled to an order
granting the voluntary dismissal of his action with prejudice.
The decision whether to grant a motion for voluntary dismissal
under Rule 41(a)(2) rests with the sound discretion of the trial
court. D'Alto v. Dahon California, Inc., 100 F.3d 281, 283 (2d
Cir. 1996); Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir
1990). The primary purpose of Rule 41(a)(2) is to protect the
interests of the defendants. See Clark v. Tansy,
13 F.3d 1407, 1411 (10th Cir. 1993).
The fact that the Plaintiff seeks dismissal with prejudice is
important. "Whenever a suit is dismissed without prejudice under
Rule 41(a)(2), the defendant remains under the threat of another
lawsuit. But when that threat is removed by a dismissal with
prejudice, any injustice to the defendant is significantly
lessened." F.D.I.C. v. Becker, 166 F.R.D. 14, 15 (D. Md. 1996)
(citing Smoot v. Fox, 340 F.2d 301, 302 (6th Cir. 1964) ("No
case has been cited to us, nor have we found any, where a
plaintiff, upon his own motion, was denied the right to dismiss
his case with prejudice.")). The only defendant in this action
that opposes the Plaintiff's request to end this action is
Brosnan, who claims it will prejudice his pending ...