United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY MCDADE UNITED STATES SENIOR DISTRICT JUDGE
the Court is Plaintiff Janelle Bernstrom's Motion to
Dismiss Without Prejudice pursuant to Fed.R.Civ.P. 41(a)(2)
(Doc. 10). Defendant Convergent Healthcare Recoveries, Inc.,
has filed a Response (Doc. 11), and the matter is ripe for
review. For the following reasons, Plaintiff's Motion to
Dismiss Without Prejudice is GRANTED.
March 4, 2019, Plaintiff brought an action against Defendants
alleging repeated violations of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692. (Doc. 1). Plaintiff
alleges Defendant Convergent employed the unidentified
Defendants as individual debt collectors. The Complaint (Doc.
1) alleges Defendants began calling Plaintiff in an attempt
to collect a debt owned by someone other than Plaintiff.
Plaintiff informed Defendants she did not know the individual
owner of the debt, and said individual could not be reached
at that phone number. Consequently, Plaintiff requested all
calls from Defendants related to that debt cease. Plaintiff
alleges Defendants continued to contact her causing
“inconvenience and frustration, ” for which she
was seeking damages. (Doc. 1).
months later, Plaintiff filed the instant motion pursuant to
Fed.R.Civ.P. 41(a)(2) following a telephone conference with
Defendant before District Court Magistrate Judge Jonathan
Hawley. (Doc. 10). Plaintiff indicated she was unable to
continue the lawsuit against Defendant for “personal
reasons” and requested the Court dismiss the action
without prejudice. (Doc. 10 at 1). Defendant opposes
dismissal without prejudice and instead urges the Court to
dismiss Plaintiff's action with prejudice. (Doc. 11 at
41(a)(2) of the Federal Rules of Civil Procedure allows for
the voluntary dismissal of lawsuits by court order on
“terms and conditions . . . the court deems
proper.” Wojtas v. Capital Guardian Tr. Co.,
477 F.3d 924, 927 (7th Cir. 2007). Rule 41(a)(2) provides
only the Court may dismiss an action after an opposing party
has filed an answer or a motion for summary judgment, absent
a stipulation of dismissal signed by all parties. Cox v.
Hurwitz, No. 17-cv-1334, 2018 WL 4401740, at *1 (S.D.
Ill. Sept. 14, 2018). It is within the Court's discretion
to determine if a plaintiff's motion for voluntary
dismissal should be granted with or without prejudice.
Kunz v. DeFelice, 538 F.3d 667, 677 (7th Cir. 2008).
A dismissal with prejudice has the same effect as an adverse
judgement on the merits. Mother & Father v.
Cassidy, 338 F.3d 704, 708 (7th Cir. 2003). “A
defendant can prevent such voluntary dismissal only by
showing that ‘plain legal prejudice' will
result.” Simons v. Fox, 725 Fed.Appx. 402, at
*406 (7th Cir. Feb. 1, 2018). Defendant must specify the
prejudice it will incur if the dismissal is granted without
prejudice. Simmons v. Gillespie, No. 08-cv-1068,
2010 WL 1790370, at *2 (C.D. Ill. Apr. 29, 2010). Plain legal
prejudice must be more than the mere prospect of a second
lawsuit. Stern v. Barnett, 452 F.2d 211, 213 (7th
deciding whether to grant a Rule 41(a)(2) motion for
dismissal with or without prejudice, courts consider the
following factors: (1) defendant's efforts and resources
thus far expended, (2) excessive delay and lack of diligence
on the part of the plaintiff in pursing their action, (3) the
sufficiency of explanation for the need of a dismissal, and
(4) whether a summary judgment motion has already been filed
by the defendant. Kunz, 538 F.3d at 677-78; see
also Pace v. Southern Express Co., 409 F.2d 331, 334
(7th Cir. 1969).
argues Plaintiff's explanation for moving to dismiss
without prejudice is insufficient. However, the sufficiency
factor is to be considered alongside the three others
outlined in Kunz.
expenses already incurred by Defendant in responding to this
suit have been minimal. Discovery has yet to take place and
only a handful of motions have been filed. Because discovery
is not well underway, or even started, Defendant's
efforts and expenses to date do not militate against
dismissal without prejudice. See Tyco Labs.,
Inc. v. Koppers Co., 627 F.2d 54, 56 (7th Cir. 1980)
(holding the commencement of discovery alone did not create
the plain legal prejudice needed to defeat the dismissal
without prejudice). Plaintiff has not caused an excessive
delay nor lacked diligence in pursuing her claim. She first
filed her action soon after the underlying incidents
allegedly occurred in February of 2019. Her Motion for
Dismissal Without Prejudice (Doc. 10) followed in a
reasonable amount of time some two months later.
the Court agrees with Defendant that Plaintiff's vague
“personal reasons” explanation for dismissal is
by itself insufficient, weighed against Defendant's
minimal efforts and expenses incurred thus far, an absence of
delay or carelessness on the part of Plaintiff, and the fact
Defendant has yet to file a summary judgment motion, the
insufficient explanation alone does not make dismissal
without prejudice unwarranted.
the Court is unpersuaded by Defendant's argument that
dismissal without prejudice would create an unfair
disadvantage in the future. The “plain legal
prejudice” Defendant asserts it will suffer if
Plaintiff is allowed a dismissal without prejudice is only
that it will have to defend itself once again against the
same lawsuit. But the Seventh Circuit has explicitly stated
the bare possibility of a second lawsuit regarding the same
claim is not enough to constitute the plain legal prejudice
needed to defeat a Motion to Dismiss Without Prejudice.
Stern, 452 F.2d at 213. If Plaintiff's motion is
granted and she refiles her action within the limitations
period, Defendant plausibly would be able to simply adapt the