Eric McBride v. JLG Industries, Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15853 July 11, 2006
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK

D.C. Docket No. 03-00118-CV-HL-7

ERIC MCBRIDE,

Plaintiff-Appellant,

PIEDMONT ENGINEERS OF THE
CAROLINAS, P.C.,

Plaintiff,

versus

JLG INDUSTRIES, INC.,
RENTAL SERVICE CORPORATION,
NEFF RENTAL, INC.,

Defendants-Appellees.

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Appeal from the United States District Court
for the Middle District of Georgia
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(July 11, 2006)

Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:

Plaintiff-Appellant Eric McBride appeals the denial of his motion to dismiss

his complaint voluntarily and the grant of Defendants-Appellees motions for

summary judgment. No reversible error has been shown; we affirm.

This suit arises out of injuries Plaintiff claims he sustained while working

on 16 September 2001, as a consequence of an alleged malfunction of a boom lift

in which he was a passenger. Suit was filed on 15 September 2003,1 just before

the expiration of Georgia’s statute of limitations. Plaintiff asserted that Defendant

JLG Industries, Inc. manufactured the allegedly defective boom lift and that

Defendants Rental Services Corp. and Neff Rental were the sellers or renters or

both of the boom lift machinery. Plaintiff alleged strict liability and negligence

counts.

After a protracted period of discovery, Defendants moved for summary

judgment based among other things on, Plaintiff’s failure to identify the allegedly

malfunctioning boom lift and on Plaintiff’s consequent inability to show a

connection between the boom lift and the Defendants. Plaintiff moved for

additional time to respond to Defendants’s motions for summary judgment. In

denying that motion, the district court chronicled Plaintiff’s failure to gather

1
Suit was filed in state court and removed to federal court on the basis of diversity jurisdiction.

2
evidence despite repeated extensions granted at Plaintiff’s request. Plaintiff then

filed a Motion to Dismiss Without Prejudice under Fed.R.Civ.P. 41(a)(2). In that

motion, Plaintiff conceded that he could not survive Defendants’s motions for

summary judgment. The district court denied Plaintiff’s motion to dismiss and

granted Defendants’s motions for summary judgment.

We review a district court’s grant or denial of a motion to dismiss a

complaint without prejudice for abuse of discretion. Pontenberg v. Boston

Scientific Corp., 252 F.3d 1253, 1256 (11th Cir. 2001). The Federal Rules of Civil

Procedure require an order of the Court to effect a voluntary dismissal of a

complaint by a plaintiff when, as here, an adverse party has served an answer or a

motion for summary judgment. Fed.R.Civ.P. 41. About whether a motion to

dismiss should be granted, we have said these words:

in most cases, a voluntary dismissal should be granted
unless the defendant will suffer clear legal prejudice,
other than the mere prospect of a subsequent lawsuit, as
a result. The crucial question to be determined is, Would
the defendant lose any substantial right by the dismissal.
In exercising its broad discretion under Rule 41(a)(2),
the district court must weigh the relevant equities and do
justice between the parties in each case, imposing such
costs and attaching such conditions to the dismissal as
are deemed appropriate.

3
Id. at 1255-56 (citations, quotations, and emphasis omitted). A plaintiff enjoys no

right to a voluntary dismissal without prejudice. Fisher v. P.R. Marine Mgmt.,

Inc., 940 F.2d 1502 (11th Cir. 1991). We have also said that a district court, when

exercising its discretion “should keep in mind the interests of the defendant, for

Rule 41(a)(2) exists chiefly for protection of the defendants.” Id. at 1503.

In denying Plaintiff’s Rule 41(a)(2) motion, the district court noted the time

that had passed since the case was filed, the many motions filed, and the discovery

produced. These factors supported the Defendants’s claims that, in this case,

considerable time had been expended and expenses incurred. The district court

also noted the many extensions granted to Plaintiff for naught. The district court

concluded that Plaintiff’s motion to dismiss -- filed while Defendants’s summary

judgment motions were pending -- was “solely motivated to avoid an expected

adverse ruling on Defendants’ summary judgment motions.” Based on these

considerations and the late stage of the litigation, the district court found that

Defendants would be prejudiced by a dismissal without prejudice.

On this record, we can not say the district court’s decision constituted an

abuse of discretion. As we have said, “[d]iscretion means the district court has a

range of choice, and that its decision will not be disturbed as long as it stays

within that range and is not influenced by any mistake of law.” Betty K Agencies,

4
Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005) (internal quotation

and citation omitted). No rule of law precluded denial of Plaintiff’s Rule 41(a)(2)

motion; the court’s decision was within the zone of choice.

AFFIRMED.2

2
We need not also review the grant of summary judgment against Plaintiff: Plaintiff conceded that
he had insufficient evidence to survive Defendants’s summary judgment motion.