The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Plaintiff Staten Island Terminal, LLC ("SI") has timely moved under Federal Rule of Civil Procedure ("FRCP") 41(a)(2) to dismiss this action without prejudice. Defendant Ruben Elberg has untimely cross-moved under FRCP 41(b)(2) to dismiss this action with prejudice for failure to prosecute.
For the following reasons, the case is dismissed without prejudice.
On July 7, 2011, SI filed a maritime tort claim against Elberg for $277,500 in damages. (Compl. (Doc. No. 1) at 4.) SI alleges that Elberg's out-of-service ferry broke loose of its mooring lines and physically damaged SI's pier and dock. (Compl. at 2.) On July 29, 2011, Elberg filed an answer pro se. (Doc. No. 3.)
United States Magistrate Judge Lois Bloom held a pretrial conference pursuant to FRCP 16 on September 20, 2011. On December 21, 2011, attorney Levi Huebner appeared on behalf of Elberg. In a status conference on January 5, 2012, Judge Bloom reset the discovery deadline to February 21, 2012, the expert report deadline to March 23, 2012, and the expert discovery deadline to April 23, 2012.
On March 28, 2012, Judge Bloom held a telephone conference with the parties. SI's counsel explained that SI wished to dismiss the action, because it had concluded that Elberg would likely be unable to satisfy any judgment against him. (Mar. 28 H'g Tr. (Doc. No. 25) at 8.) According to SI, Elberg was significantly in debt, and SI had recently learned that negotiations to sell his ferry had fallen through. (Id. at 6.) SI's counsel explained that SI had forwarded a voluntary stipulation of dismissal without prejudice to Elberg, not wanting to pay their expert to prepare a review of the ferry mooring if the case was unlikely to prove remunerative. (Id. at 7--8.) Elberg's counsel, however, stated that Elberg would only stipulate to a dismissal with prejudice, for fear that SI might revive the lawsuit before the statute of limitations would expire in December of 2012. (Id. at 9.) Elberg's counsel further averred that Elberg had already spent "tens of thousands of dollars" on the litigation, and that SI had committed "malfeasance" by refusing to respond to discovery demands and by being generally unresponsive. (Id. at 12--13.)
Given the parties' impasse, Judge Bloom instructed SI and Elberg to move for dismissal without prejudice and for dismissal for lack of prosecution, respectively, in accordance with this Court's pre-motion rules. (Id. at 15--16.) Judge Bloom also dismissed Elberg's March 22, 2012 motion to compel discovery, which he filed more than one month after the discovery deadline. (Id. at 15.) Although Elberg's counsel attributed the late filing to a "calendaring issue," (id. at 9), Judge Bloom cautioned him against treating court deadlines casually, noting "when you're saying that you missed a deadline by a mere 31 days or 24 days, you missed a deadline, sir. It doesn't matter. If you read Supreme Court cases, you miss a deadline, you're out." (Id. at 11.)
This Court held an in-person pre-motion conference on April 19, 2012. The Court gave SI until May 2, 2012 to move for dismissal without prejudice under FRCP 41(a)(2), and gave Elberg until May 9, 2012 to reply and to move for dismissal with prejudice under FRCP 41(b)(2). On May 2, 2012, SI filed its motion for dismissal without prejudice. ("SI Mot." (Doc. No. 29).) On May 10, 2012, Elberg filed a memorandum opposing SI's motion, along with a cross-motion for dismissal with prejudice or alternatively for attorney's fees. ("Opp. Mem." (Doc. No. 30).) Elberg also filed a request for an extension of time nunc pro tunc, to which SI consented. (Doc. No. 31.)
SI seeks dismissal without prejudice under FRCP 41(a)(2). Elberg's counsel failed to oppose this motion until the response deadline had passed, despite being given a week to respond and repeated warnings to respect this Court's deadlines. Elberg's cross-motion under FRCP 41(b) for failure to prosecute is not only untimely, but will also be rendered moot if this Court grants SI's motion. For these reasons, this Court reviews the merits of SI's motion first. See, e.g., Tierney v. Constellation Energy Group, Inc., No. 06 Civ. 220 (NAM/GHL), 2007 WL 4246301 (N.D.N.Y. Nov. 28, 2007).
FRCP 41(a)(2) provides that, where an answer has been served and the parties refuse to stipulate to dismissal, an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. See Dzanoucakis v. Chase Manhattan Bank, USA, No. 06 Civ. 5673 (JFB) (ARL), 2008 WL 820047, at *2 (E.D.N.Y. Mar. 25, 2008). Although voluntary dismissal without prejudice is not a matter of right, courts in this circuit presume that a party's motion to dismiss its own claims without prejudice should be granted. See Team Obsolete Ltd. v. A.H.R.M.A. Ltd., 216 F.R.D. 29, 36 (E.D.N.Y. 2003).
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 ...