Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Crooker v. Wachovia Bank

March 25, 2010

MICHAEL ALAN CROOKER, PLAINTIFF,
v.
WACHOVIA BANK, AND LUSTIG, GLASER & WILSON, P.C., DEFENDANTS.



The opinion of the court was delivered by: Pollak, J.

OPINION

I. Background

On April 30, 2009, plaintiff Michael Alan Crooker filed a pro se complaint in the Pennsylvania Court of Common Pleas alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692c(b), 1692c(a)(1), 1692d(5), 1692d(6) and 1692e(4). He named Wachovia Bank ("Wachovia") and Lustig, Glaser & Wilson, P.C. ("Lustig"), as defendants. Lustig removed the case to federal court on May 13, 2009. Wachovia was added as a party defendant to the federal case on May 18, 2009. On May 27, 2009, Wachovia filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(e). On June 5, 2009, Lustig filed its answer, affirmative defenses, and counterclaim, which contained a request for sanctions. On August 13, 2009, Lustig filed a motion for judgment on the pleadings. On August 19, 2009 Crooker filed a "Notice of Dismissal" under Federal Rule of Civil Procedure 41(a)(1)(i)). On August 27, Crooker responded to Lustig's motion for judgment on the pleadings. On October 5, Crooker filed a response in opposition to Lustig's motion for sanctions.

II. Analysis

Plaintiff's August 19, 2009 Notice of Dismissal sought dismissal under Federal Rule 41(a)(1). Voluntary dismissal by the plaintiff is available under F. R. Civ. P. 41(a)(1)(A)(i) if it is filed before "the opposing party serves either an answer or a motion for summary judgment." F. R. Civ. P. 41(a)(1)(A)(i). In this case, plaintiff filed his notice to dismiss after Wachovia filed a motion to dismiss and Lustig filed a motion for judgment on the pleadings. Accordingly, plaintiff's voluntary dismissal under F. R. Civ. P. 41(a)(1)(A)(i) is not effective.

However, plaintiff plainly seeks to voluntarily dismiss this action. Plaintiff's notice of dismissal states, in relevant part, that:

Plaintiff hereby dismisses this action. The defendant debt-collectors brought this case here, not Crooker. Crooker wants nothing to do with the federal courts and deliberately brings his cases to state court whenever concurrent jurisdiction statutes allow . . . . State courts do not have onerous 'PLRA' laws that discriminate against pro se prisoner-litigants nor are they as big-business friendly as the federal courts are.

In his two subsequent submissions to this court, memoranda of law opposing Lustig's motion for sanctions and judgment on the pleadings, plaintiff again stated that he did not want to proceed with the cause of action.

While Crooker's voluntary dismissal is untimely under F. R. Civ. P. 41(a)(1), this court will consider dismissing the action under F. R. Civ. P. 41(a)(2), which permits dismissal "at the plaintiff's request only by court order, on terms that the court considers proper." F. R. Civ. P. 41(a)(2). Voluntary dismissal upon motion of plaintiff after defendant has filed its answer falls within the discretion of the district court. Ferguson v. Eakle, 492 F.2d 26, 28 (3d Cir.1974)). Typically, such dismissal is granted without prejudice, but "[i]t is within the court's discretion . . . to grant the dismissal with prejudice where it would be inequitable or prejudicial to defendant to allow plaintiff to refile the action." Chodorow v. Roswick, 160 F.R.D. 522, 523 (E.D.Pa.1995).

I must consider several factors in deciding whether to grant the dismissal with prejudice. These factors include:

(1) the excessive and duplicative expense of a second litigation; (2) the effort and expense incurred by the defendant in preparing for trial; (3) the extent to which the current suit has progressed; (4) the plaintiff's diligence in bringing the motion to dismiss and explanation therefore; and (5) the pendency of a dispositive motion by the non-moving party.

Dodge-Regupol, Inc. v. RB Rubber Products, Inc., 585 F.Supp.2d 645, 652 (M.D.Pa. 2008); see also Schandelmeier v. Otis Div. of Baker-Material Handling Corp., 143 F.R.D. 102, 102 (W.D.Pa. 1992) (identifying three factors the court must consider in ruling on a motion to dismiss without prejudice: prejudice to the defendant, both in terms of legal prejudice and litigation expense; plaintiff's diligence in bringing the motion; pendency of a dispositive motion by the non-moving party). However, "[t]he prejudice to defendant must be something other than the mere prospect of a second lawsuit." Chodorow, 160 F.R.D. at 523.

A. Plaintiff's Claims Against Wachovia

In this case, these factors weigh heavily in favor of dismissing Crooker's claims against Wachovia with prejudice. Crooker has made it clear that he refuses to participate in this suit because it has been removed to federal court. He plainly believes that the pleading rules in state court are more favorable to pro se defendants. Apparently, Crooker has moved for voluntary dismissal only so that he can avoid federal jurisdiction. Thus, were this court to grant Crooker's motion to dismiss without prejudice, Crooker would have leave to re-file his cause of action in state court, and Wachovia would again be able to remove to federal court. No progress would have been made in the case, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.