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Zamias v. Fifth Third Bank

United States District Court, W.D. Pennsylvania

June 21, 2018

GEORGE ZAMIAS, ESTATE OF MARIANNA ZAMIAS, DECEASED, DAMIAN ZAMIAS, individually and as co-executor of the Estate of Marianna Zamias, STEPHEN ZAMIAS, individually and as co-executor of the Estate of Marianna Zamias, ESTATE OF SAMUEL ZAMIAS, DECEASED, Kathleen Zamias, Executor, Plaintiffs,
v.
FIFTH THIRD BANK, Defendant.

          MEMORANDUM OPINION

          KIM R. GIBSON JUDGE.

         I. Introduction

         Pending before the Court is Plaintiffs' Motion for Voluntary Dismissal Pursuant to Federal Rule of Civil Procedure 41(a)(2) (ECF No. 38). The Motion has been fully briefed (see ECF Nos. 38, 39) and is ripe for disposition. For the reasons that follow, the Court will DENY Plaintiffs' Motion.

         II. Relevant Background[1]

         On June 26, 2017, Plaintiffs filed this action in the Court of Common Pleas of Cambria County, Pennsylvania. (See ECF No. 1-2.) Plaintiffs asserted six counts against Fifth Third: (1) fraud; (2) tortious interference with contractual relations; (3) breach of duties of good faith and fair dealing; (4) accounting; (5) fraud in the inducement; and (6) predatory lending practices. (ECF No. 1-2 at 17-23.) Fifth Third removed the case to this Court on August 18, 2017. (ECF No. 1.)

         On August 25, 2017, Fifth Third filed a Motion to Dismiss. (ECF No. 4.) On September 5, 2017, Plaintiffs filed a Motion to Remand Based on Abstention. (ECF No. 7.)

         On January 9, 2018, the Court filed a Memorandum Opinion and Order denying Plaintiffs' Motion to Remand and granting in part, and denying in part, Fifth Third's Motion to Dismiss. (ECF No. 26.) The Court denied Fifth Third's Motion to Dismiss Plaintiffs' tortious interference claim (Count 2) in regards to the allegations that were not barred by the statute of limitations. (Id. at 40.) The Court granted Fifth Third's Motion to Dismiss Plaintiffs' fraud claim (Count 1), fraudulent inducement claim (Count 5), equitable accounting claim (Count 4), and predatory lending claim (Count 6), which were dismissed with prejudice. (Id.) The Court granted Fifth Third's Motion to Dismiss Plaintiffs' claims of breach of the covenant of good faith and fair dealing (Count 3) and legal accounting (Count 4), but granted Plaintiffs leave to amend these claims. (Id.) The Court also granted Plaintiffs leave to amend to plead a breach of contract claim, and informed Plaintiffs that, under Pennsylvania law, claims for breach of the implied covenant of good faith and fair dealing and legal accounting must be accompanied by a breach of contract claim. (Id. at 38.)

         Plaintiffs filed a three-count Amended Complaint on February 7, 2018, asserting claims of breach of contract, legal accounting, and tortious interference with contractual relations (ECF No. 28.) Plaintiffs filed their Amended Complaint 16 days after the deadline for filing an Amended Complaint had passed. Fifth Third filed a Motion to Strike the Amended Complaint. (ECF No. 29.) The Court denied Fifth Third's Motion to Strike. (ECF No. 34.)

         After the Court denied Fifth Third's Motion to Strike, Fifth Third filed an Answer to the Amended Complaint (ECF No. 35) and a Motion for Judgment on the Pleadings. (ECF No. 36.) Plaintiffs never responded to Fifth Third's Motion for Judgment on the Pleadings. Instead, Plaintiffs filed the pending Motion for Voluntary Dismissal.[2] (ECF No. 38.) Fifth Third argues that the Court should deny Plaintiffs' Motion for Voluntary Dismissal and instead rule on the merits of Fifth Third's Motion for Judgment on the Pleadings. (See ECF No. 39.)

         III. Discussion

         Plaintiffs argue that the Court should grant its Motion for Voluntary Dismissal because the claims that they assert here are duplicates of claims already pending in state court litigation between Plaintiffs and Fifth Third. (ECF No. 38 at 3.) Plaintiffs further assert that the Court should grant their Motion for Voluntary Dismissal because the case is in the early stages and discovery has not yet taken place.[3] (Id. at 3.)

         In response, Fifth Third asserts that the Court should deny Plaintiffs' Motion because Plaintiffs are attempting to frustrate the purpose of the removal statute and evade a forthcoming ruling on the merits of Fifth Third's Motion for Judgment on the Pleadings. (ECF No. 39 at 4-7.) Fifth Third also states that the state court litigation is not analogous because Plaintiffs have not brought any affirmative claims in the state court proceedings nor asserted any claims for damages.[4] (Id. at 9.)

         Federal Rule of Civil Procedure 41(a) governs voluntary dismissals. If the opposing party has filed an answer -as Fifth Third did here (see ECF No. 35) -the "action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed.R.Civ.P. 41(a)(2).

         "A voluntary dismissal without prejudice is not a matter of right." Cottingham v. Tutor Perini Bldg. Corp., No. CV 14-2793, 2016 WL 54916, at *2 (E.D. Pa. Jan. 5, 2016) (quoting Connor v. Corporate Life Consultants, No. 06-2831, 2006 WL 2828865, at *1 (E.D. Pa. Sept. 29, 2006)). "The grant or denial of a motion for voluntary dismissal under Rule 41(a)(2) lies within the sound discretion of the district court." Hayden v. Westfield Ins. Co., No. CIV.A. 12-0390, 2013 WL 5781121, at *2 (W.D. Pa. Oct. 25, 2013), aff'd,586 Fed.Appx. 835 (3d Cir. 2014) (Hornak, J.) (quoting Dodge-Regupol, Inc. v. RB Rubber Products, Inc.,585 F.Supp.2d 645, 652 (M.D. Pa. Nov. 12, 2008)). "The purpose of the grant of discretion under Rule 41(a)(2) ... is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the ...


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