United States District Court, W.D. Pennsylvania
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,
FIFTH THIRD BANK, Defendant.
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
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.
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.)
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.)
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.)
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. (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.)
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. (Id. at 3.)
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. (Id. at 9.)
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.
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 ...