[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-15368 ELEVENTH CIRCUIT
JUNE 23, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00185-CV-OC-10-GRJ
ROBERTS ENTERPRISES, INC.,
a Florida corporation,
Plaintiff-Appellee,
versus
OLYMPIA SALES, INC.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 23, 2006)
Before DUBINA, HULL and COX, Circuit Judges.
PER CURIAM:
Defendant Olympia Sales, Inc. (“Olympia”) appeals the district court’s
judgment of voluntarily dismissal of Plaintiff Roberts Enterprises, Inc.’s (“Roberts”)
lawsuit against Olympia without prejudice, pursuant to Fed. R. Civ. P. 41(a)(2).
Olympia contends that the district court abused its discretion in dismissing the
complaint without prejudice because Roberts delayed in moving for dismissal,
Olympia had incurred significant legal expenses in defending the case, Olympia had
filed a motion for summary judgment that was pending at the time of the dismissal,
and Olympia was deprived by the dismissal without prejudice of a potential malicious
prosecution claim against Roberts.
After review of the briefs and the record on appeal, we affirm. The district
court did not abuse its discretion in granting Roberts’s motion for a voluntary
dismissal on the condition that Roberts could not reassert the claims made in this
lawsuit in another case without first paying Olympia $139,121.98 (the costs and
attorneys’ fees Olympia incurred in defense of this lawsuit). See Pontenberg v.
Boston Scientific Corp., 252 F.3d 1253 (11th Cir. 2001).
AFFIRMED.
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