United States District Court, S.D. Texas, Houston Division
ORDER AND OPINION
MELINDA HARMON UNITED STATES DISTRICT JUDGE
before the Court in the above-referenced cause is Plaintiff
Becki Wagley, Individually and A/N/F of Holly Wagley's
(“Wagley”) Motion for Nonsuit without Prejudice
as to Defendant GEICO County Mutual Insurance Company
(“GEICO”), Doc. 13, and GEICO's Response,
Doc. 14. After careful consideration of the filings, record,
and law, the Court grants a nonsuit with prejudice.
November 20, 2017, Wagley filed her Original Petition in the
278th Judicial District Court of Madison County, Texas. Doc.
5-1. Wagley then amended her Petition to include Defendant
GEICO. Doc. 5-2. Defendants GEICO, MCL Smith, Inc., and
Kendon Watkins answered. Docs. 5-3 & 5-4. And MCL Smith
removed the case to federal court. Doc. 5, 5-5.
the case, the parties agreed to a joint discovery plan, Doc.
6, entered a certificate of interested parties, Doc. 8, and
attended a hearing before Magistrate Judge Stacy to determine
the scheduling dates, see Doc. 11. At that hearing, the
parties referred to a settlement agreement between Wagley,
MCL Smith, and Watkins. Because of the settlement, Magistrate
Stacy set an ad litem hearing, Doc. 12, and appointed a
Guardian Ad Litem, Doc. 16.
to GEICO's Response to this Motion, its request a
“nonsuit with prejudice” because
it alleges that Wagley has had “adequate opportunity to
investigate the liability and damage facts” and because
it alleges that Wagley has “entered into a settlement
agreement” against the other defendants. Doc. 14 at 1.
And because Wagley states that “they do not desire to
further prosecute their cause of action against
[GEICO].” Id.; 13 at 1. GEICO provides no
authority in support of its argument. Doc. 14.
is no “non-suit” recognized in Federal Rules of
Civil Procedure, which govern suits filed in federal court.
Instead, Federal Rule of Civil Procedure 41(a) provides for
voluntary dismissal “without prejudice, ” stating
in relevant part, that the Plaintiff can dismiss their case
“before opposing party serves either an answer or a
motion for summary judgment” or with “a
stipulation of dismissal signed by all parties who have
appeared.” Fed.R.Civ.P. 41(a)(1). But if the plaintiff
“previously dismissed any federal-or state-court action
based on or including the same claim, a notice of dismissal
operates as an adjudication on the merits.”
defendant has filed an answer or a motion for summary
judgment, a plaintiff may move for dismissal by court order.
Fed.R.Civ.P. 41(a)(2). Such motions are generally granted
“unless the defendant will suffer some plain legal
prejudice other than the mere prospect of a second
lawsuit.” Elbaor v. Tripath Imaging, Inc., 279
F.3d 314, 317 (5th Cir. 2002). “Plain legal prejudice
may occur when the plaintiff moves to dismiss a suit at a
late stage of the proceedings or seeks to avoid an imminent
adverse ruling in the case, or where a subsequent refiling of
the suit would deprive the defendant of a limitations
defense.” Harris v. Devon Energy Prod. Co.
L.P., 500 F. App'x. 267, 268 (5th Cir. 2012) (per
curiam). A court may refuse to grant a voluntary dismissal
where a plaintiff “fails to seek dismissal until a late
stage of trial, after the defendant has exerted significant
time and effort.” Harris, 500 Fed.Appx. at
268; Hartford Acc. & Indem. Co. v. Costa Lines Cargo
Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990);
see, e.g., Thomas v. Miramar Lakes Homeowners
Ass'n, No. 4:13-CV-1479, 2014 WL 3897809, at *4
(S.D. Tex. Aug. 6, 2014) (denying motion for voluntary
dismissal filed almost a year later where defendants
answered, participated in scheduling conferences, filed a
dispositive motion, and participated in out-of-court
mediation and settlement negotiations).
GEICO answered Wagley's First Amended Petition, the Court
considers the Motion under Federal Rule of Civil Procedure
Wagley filed her Original Petition half a year ago. During
the progress of the case, GEICO answered, the parties agreed
to a joint discovery plan, entered a certificate of
interested parties, attended a scheduling conference where
the settlement with Defendants MCL Smith and Watkins was
mentioned. Also, the Magistrate Judge appointed an ad litem
and set an ad litem hearing.
Court finds that this case is in the late stage of the
proceedings because Wagley is settling with two defendants,
“nonsuiting” another, and will end the case in a
minor settlement hearing after the Guardian Ad Litem performs
his service. But GEICO does not allege and the Court does not
find that GEICO has expended significant time or effort or
that it will be deprived of a limitations defense. On the
balance, the Court holds that dismissal is appropriate if
accompanied with prejudice. See Harris, 500
Fed.Appx. at 268; Thomas, 2014 WL 3897809, at *4.
Accordingly, it is hereby ORDERED that
Wagley's Motion for Nonsuit without Prejudice as to
Defendant GEICO, Doc. 13, is GRANTED as a
Voluntary Dismissal with prejudice.
 Tex.R.Civ.P. 162 provides for