The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:
MEMORANDUM OPINION & ORDER
This is an employment discrimination action brought under Title VII of the Civil Rights Act of 1964 and related provisions of New York and local law. Plaintiff Bhavya Shah claims that she suffered retaliation after complaining about being sexually harassed by a supervisor. Plaintiff has moved for voluntary dismissal under Fed. R. Civ. P. 41(a)(2). Defendant RBC Capital Markets Corporation opposes the motion and, in the event the motion is granted, seeks an award of attorneys' fees. For the reasons set forth below, Shah's motion for voluntary dismissal will be granted, and RBC's request for attorneys' fees will be denied.
The Complaint was filed on October 7, 2010, and RBC answered on December 28, 2010. (Dkt. Nos. 1, 3) An initial conference was held on February 3, 2011, and a Case Management Plan was entered the next day. (Dkt. No. 6)
On May 13, 2011, Shah filed a motion pursuant to Fed. R. Civ. P. 41(a)(2) seeking dismissal without prejudice. Shah seeks dismissal because (1) "she is two months pregnant and has developed complications which will make it difficult for her to participate in this litigation," and (2) "plaintiff has decided to assert state law claims against the individual harasser in state court." (Pltf. Br. 4) Shah represents that if the dismissal is granted, she will "abandon her federal claims against defendant and rely solely on [her] state law claim in state court." (Id.) Shah has agreed that "any discovery exchanged in this action may be used in the subsequent state court lawsuit." (Id.)
RBC filed its opposition to Shah's motion on June 6, 2011. RBC argues that it will be prejudiced by the delay in the litigation (Def. Br. 7) and seeks an attorneys' fee award in the event that voluntary dismissal is granted. Shah opposes the request for attorneys' fees, arguing that "defendant has failed to demonstrate that any time incurred would not be applicable to the state court action [and that all] the time incurred was necessary." (Pltf. June 14, 2011 Ltr. 1, 4)
It is within the sound discretion of this Court to determine whether dismissal without prejudice is appropriate. Under Rule 41(a)(2), "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." In resolving a motion for voluntary dismissal, courts should consider
"the plaintiff's diligence in bringing the motion; any 'undue vexatiousness' on plaintiff's part; the extent to which the suit has progressed, including the defendant's effort and expense in preparation for trial; the duplicative expense of relitigation; and the adequacy of plaintiff's explanation for the need to dismiss."
Ibeto Petrochemical Indus. Ltd. v. M/T Beffen, 475 F.3d 56, 61 (2d Cir. 2007) (quoting Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990)). "The primary purpose of Rule 41(a)(2) is to protect the interest of the defendant.
Accordingly, a dismissal without prejudice should be granted under Rule 41(a)(2) where the defendant will not suffer any legal prejudice." D'Alto v. Dahon California, Inc., 100 F.3d 281, 283 (2d Cir. 1996). Moreover, "the possibility of commencing another action in state court will not operate as a bar to granting the motion." Mercer Tool Corp. v. Friedr. Dick GmbH, 175 F.R.D. 173, 175 (E.D.N.Y. 1997) (internal citations omitted). "To protect the defendant's rights[, however,] the Second Circuit permits the imposition of certain conditions when granting a plaintiff a voluntary dismissal." (Id.)
I.DISMISSAL WITHOUT PREJUDICE IS APPROPRIATE
After considering the five Zagano factors, this Court concludes that this action should be dismissed without prejudice.
First, Shah has demonstrated that she was diligent in bringing this motion and has provided an adequate explanation for it. A letter from Shah's doctor states that she "developed complications in her pregnancy in late April, and was removed from work for four weeks." (June 6, 2011 Garden City Women's Health Center Ltr.) Shah's doctor states that her "prognosis is guarded as to a recurrence of those complications," and ...