Shabazz v. Pya Monarch, LLC

• Decision Date: 13 March 2003
• Docket Number: No. CIV.A. 202CV630.,CIV.A. 202CV630.
• Citation: 271 F.Supp.2d 797
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Ali SHABAZZ, Plaintiff, v. PYA MONARCH, LLC, Defendant.

271 F.Supp.2d 797

Ali SHABAZZ, Plaintiff, v. PYA MONARCH, LLC, Defendant.

No. CIV.A. 202CV630.

United States District Court, E.D. Virginia, Norfolk Division.

March 13, 2003.

LeRon W. Gilchrist, Sams & Scott, Norfolk, for Plaintiff.

Sara L. Berg, Hunton & Williams, Richmond, James P. Naughton, Hunton & Williams, Norfolk, for Defendant.

ORDER AND OPINION

FRIEDMAN, District Judge.

This matter is before the court on a number of motions filed by the parties. First, Ali Shabazz ("plaintiff") filed a Motion for Voluntary Dismissal without prejudice, pursuant to Federal Rule of Civil Procedure ("Rule") 41(a)(2). PYA Monarch, LLC ("defendant") filed its opposition to the plaintiff's Motion as well as a Cross-Motion for Dismissal with Prejudice, pursuant to Rules 37 and/or 41(b). Shortly after the filing of these Motions, and before the court was able to rule on them, the defendant filed a Motion for Summary Judgment. After examination of the briefs and record, this court determines oral argument is unnecessary because the facts and legal arguments are adequately presented and the decisional process would not be significantly aided by oral argument. Based on the briefs, the court denies the plaintiff's Motion for Voluntary Dismiss, denies the defendant's Cross-Motion to Dismiss, and grants the defendant's Motion for Summary Judgment.

I. Factual Background

On July 23, 2002, the plaintiff filed this lawsuit against the defendant in Virginia Beach Circuit Court, alleging that the defendant made false, slanderous, and defamatory statements to the Virginia Employment Commission ("VEC") and the United States Equal Employment Opportunity Commission ("EEOC") in response to the plaintiff's allegations of wrongful discharge. See Notice of Removal, Dkt. 1, Ex. A — Motion for Judgment. These statements contained information gathered by the defendant during its investigation into comments allegedly made by the plaintiff to a number of customers regarding the September 11, 2001 terrorist attacks. The plaintiff also alleges that the defendant made defamatory statements in a report to the Federal Bureau of Investigation ("FBI"), where the defendant accused the plaintiff of "expressing terrorist ideations and desiring to support the same Muslim terrorists who participated in the September 11, 2001 attacks on the United States." Id. On August 12, 2002, the defendant timely removed the lawsuit to federal court based on diversity of citizenship grounds. See Notice of Removal, Dkt. 1. At the September 12, 2002 scheduling conference, a non-jury trial was set for May 1, 2003.

On November 27, 2002, the plaintiff filed his Motion for Voluntary Dismissal, seeking dismissal of the case without prejudice, pursuant to Rule 41(a)(2). See Pl.'s Mot. for Voluntary Dismissal, Dkt. 7. There was no accompanying memorandum of law attached to this Motion, as required by Local Rule 7(E)(1). From the Motion, it appears that the plaintiff seeks this voluntary dismissal so that he may (1) add a new party defendant, and (2) clarify and restate grounds in the Motion for Judgment. Id. On December 9, 2002, the defendant filed its response to the plaintiff's Motion, as well as a Cross-Motion for Dismissal with Prejudice, pursuant to Rules 37 and/or 41(b). See Def.'s Cross-Mot. for Dismissal with Prejudice, Dkt. 10 ("Cross-Motion"). The defendant's primary argument in support of the Cross-Motion is that based on the plaintiff's failure to comply with the Federal Rules of Civil Procedure, failure to reply to discovery requests, and failure to meet court-imposed deadlines, dismissal is appropriate. See Def.'s Mem. in Opp. to Pl.'s Mot. for Voluntary Dismissal and in Supp. of Def.'s Cross-Mot. for Dismissal with Prejudice, Dkt. 11. The plaintiff has failed to file a reply to the defendant's Response to his Motion and a response to the Cross-Motion. As the time has now elapsed for the plaintiff to file such pleadings, see Local Rule 7(E), the court deems the Motion and Cross-Motion ripe for review.

However, before the court was able to rule on the Motions to Dismiss, the defendant filed a Motion for Summary Judgment. See Def.'s Mot. for Summ. J., Dkt. 12. The defendant lists five reasons why summary judgment is appropriate in this case, which include (1) Virginia law bars the plaintiff's claims regarding the defendant's communications with the VEC; (2) the defendant's communications with the VEC and the EEOC are absolutely privileged; (3) the defendant's communications with the FBI are absolutely privileged; (4) the plaintiff has failed to offer any evidence of malice; and (5) the alleged statements are not defamatory. The plaintiff has responded and the defendant has replied. Thus, this Motion is also ripe for review.

II. Analysis

A. Plaintiff's Motion for Dismissal without Prejudice

Motions to dismiss without prejudice pursuant to Rule 41(a)(2) are committed to the sound discretion of the district court. See Teck Gen. P'ship v. Crown Cent. Petroleum Corp., 28 F.Supp.2d 989, 991 (E.D.Va.1998). The Fourth Circuit has held that motions under 41(a)(2) "should not be denied absent substantial prejudice to the defendant." S.A. Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir.1986); accord Teck, 28 F.Supp.2d at 991 ("Typically such a motion is granted unless there is substantial prejudice or plain legal prejudice to the defendant.") (internal quotations omitted). Therefore, the focus of this court when considering this motion is "primarily on protecting the interests of the defendant." Teck, 28 F.Supp.2d at 991 (quoting Davis v. USX Corp., 819 F.2d 1270, 1272 (4th Cir.1987)). The Teck court listed a number of general factors that the Fourth Circuit endorsed, in an unpublished opinion, for determining prejudice to the defendant. These include:

(1) the opposing party's effort and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the movant; (3) insufficient explanation of the need for a dismissal; and (4) the present stage of the litigation, i.e., whether a motion for summary judgment is pending.

Id. (quoting Gross v. Spies, 133 F.3d 914, 1998 WL 8006, *5 (4th Cir.1998) (unpublished)).

In this case, the defendant argues that it has spent considerable time and expense on this case thus far, including preparing and filing removal papers; filing responsive pleadings in both federal and state courts; preparing and serving initial disclosures; conducting witness interviews; performing preliminary legal research; attending court's scheduling conference; preparing and serving interrogatories and document requests; serving two separate notices for the plaintiff's depositions; filing motion to compel discovery; and preparing and filing this instant motion.¹ See Def.'s Mem., p. 6. While some courts have required more before denying a dismissal, see e.g., S.A. Andes, 788 F.2d at 1036 (motion to dismiss denied because defendants incurred significant litigation costs by responding to the complaint, filing motions for summary judgment, and conducting extensive discovery), other courts have found far less time and expense incurred by the defendant necessary to deny the motion to dismiss, see, e.g., Teck, 28 F.Supp.2d at 992 (denying motion to dismiss based on defendant's removal of the action, answering of the complaint, answering of interrogatories and requests for admission, serving interrogatories, filing two motions to compel, and filing a motion to strike plaintiff's expert witness). The facts and circumstances involved here are certainly in line with those in Teck and therefore, it appears that factor one of the analysis weighs in favor of the defendant.

Factor two, the plaintiff's lack of diligence, also lends support for denying his motion to dismiss. As argued by the defendant, and not disputed by the plaintiff, the plaintiff has failed to adhere to discovery deadlines imposed in the Scheduling Order. The plaintiff has failed to respond to the defendant's written discovery requests and has cancelled his two scheduled depositions after they were set by mutual agreement. In addition, the plaintiff has not complied with the Local Rules of this court in failing to file (1) a memorandum of law in support of his Motion, (2) a rebuttal to the defendant's response to his Motion, and (3) a response to the defendant's Cross-Motion. Based on the plaintiff's lack of diligence, this factor lends further support to the defendant's position.

In addition, the plaintiff failed to provide a sufficient explanation of the need for the dismissal. The only reason the plaintiff has indicated as a basis for the dismissal is that he seeks to add an additional defendant and restate the grounds of his motion for judgment accordingly. However, this is best accomplished by a motion for leave to amend the complaint, not a motion to dismiss. Furthermore, as argued by the defendant, the plaintiff cannot seek a voluntary dismissal to circumvent adverse legal rulings against him. Teck, 28 F.Supp.2d at 992 (citing Paturzo v. Home Life Ins. Co., 503 F.2d 333 (4th Cir.1974)). In this case, the plaintiff failed to make a timely jury demand. The defendant argues that allowing the plaintiff to voluntarily dismiss and refile the case will permit him to avoid the consequences of his prior failure as he will be able to demand a jury. This was the situation in Paturzo, where the Fourth Circuit affirmed a district court's refusal to allow the plaintiff to dismiss a portion of its case in order to obtain a jury after failing to demand one in the original case. Paturzo, 503 F.2d at 336. Without any dispute by the plaintiff to this allegation, the court has no choice but to consider this fact in its decision. As a whole, these facts weigh against the plaintiff's Motion for Voluntary Dismissal.

Finally, there is now a Motion for Summary Judgment pending. While the plaintiff did file his Motion to Dismiss prior to the filing of the Motion for Summary Judgment, this...