The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Presently before the Court are motions by Barbara Tierney, plaintiff pro se, and Constellation Energy Group, Inc., defendant, for dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure. The parties disagree as to whether dismissal should be with or without prejudice.
On February 21, 2006, defendant removed this action to federal court alleging the Court has subject matter jurisdiction under the provisions of 29 U.S.C. § 1132(e) and 28 U.S.C. § 1332 because: (a) it is an action arising under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001; and (b) there is complete diversity of citizenship between plaintiff and defendant and the amount in controversy is more than $75,000.
United States Magistrate Judge George H. Lowe issued a Uniform Pretrial Scheduling Order on June 14, 2006. Dkt. no. 9. Subsequently, the Court granted attorney Stefan D. Berg's motion to withdraw as plaintiff's counsel. Dkt. no. 13. On August 30, 2007, plaintiff, after attempting to engage in discovery, wrote a letter to Magistrate Judge Lowe advising that she was going to end this action:
After much deliberation I have come to the realization that I must drop my pending lawsuit against Constellation Energy Group. I cannot meet the requirements needed for me to defend myself against this large corporation.
I appreciate all the time you have put into this case. I truly believed it was a case that could be won. With the lawyer I hired quitting on me and my having to do all the work on my own from that point, it has truly become more than I can successfully accomplish.
In a letter to defense counsel dated September 6, 2007, Magistrate Judge Lowe suggested that defendant prepare and submit a stipulation of dismissal pursuant to Rule 41(a)(1)(ii). Dkt. no. 21. On September 28, 2007, defendant moved pursuant to Rule 41(b) to dismiss this action with prejudice for failure to prosecute. Dkt. no. 22. Defendant asserts that it presented plaintiff with a stipulation but that plaintiff would not enter the stipulation because it specified that dismissal would be with prejudice. Accordingly, defendant filed the instant motion seeking an order dismissing this action with prejudice for failure to prosecute. Plaintiff has not opposed defendant's motion.
Defendant moves pursuant to Rule 41(b) for failure to prosecute. In view of plaintiff's request that the Court dismiss this action, however, which preceded defendant's motion, the Court will address plaintiff's request first, mindful that defendant seeks dismissal with prejudice. Rule 41(a)(2) provides that, "an 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." The Second Circuit has explained that:
Two lines of authority have developed with respect to the circumstances under which a dismissal without prejudice might be improper. One line indicates that such a dismissal would be improper if "the defendant would suffer some plain legal prejudice other than the mere prospect of a second lawsuit." Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947). Another line indicates that the test for dismissal without prejudice involves consideration of various factors, known as the Zagano factors, including (1) the plaintiff's diligence in bringing the motion, (2) any undue vexatiousness on the plaintiff's part, (3) the extent to which the suit has progressed, including the defendant's efforts and expense in preparation for trial, (4) the duplicative expense of relitigation, and (5) the adequacy of the plaintiff's explanation for the need to dismiss.
Camilli v. Grimes, 436 F.3d 120, 123 (2d Cir. 2006) (citing D'Alto v. Dahon California, Inc., 100 F.3d 281, 283 (2d Cir.1996); Zagano v. Fordham Univ., 900 F.2d 12, 14 ...