The opinion
EASTERN DISTRICT OF LOUISIANA
ANA MARIE HINCAPIE CIVIL ACTION
VERSUS NO. 23-1972
EAN HOLDINGS, LLC, et al. SECTION: “G”(5)
ORDER
Before the Court is a Motion to Dismiss without Prejudice1 filed by Plaintiff Ana Marie
Hincapie and a Motion to Dismiss with Prejudice2 filed by Defendant Subaru of America
(“Subaru”). Subaru’s motion was set for submission on March 20, 2024. Pursuant to Local Rule
7.5, an opposition to the motion was to be filed on or before March 12, 2024. To date, Plaintiff has
not filed an opposition to the motion. As such, the motion shall be deemed unopposed.
Plaintiff submits that her previous attorney withdrew from representation when they could
not substantiate her demand with testimony from an expert witness, and Plaintiff now wishes to
dismiss her claims against all Defendants without prejudice.3
Subaru contends that following the withdrawal of Plaintiff’s former counsel, Plaintiff failed
to appear for two status conferences and failed to produce Rule 26 initial disclosures.4 Subaru
submits that the Court issued an Order to Show Cause5 as to why this matter should not be
1 Rec. Doc. 24.
2 Rec. Doc. 25.
3 Rec. Doc. 24.
4 Rec. Doc. 25-1 at 1 – 2.
5 Rec. Doc. 23.
that Federal Rule of Civil Procedure 41(b) allows district courts to dismiss an action upon the
motion of a defendant or its own motion for failure to prosecute, and this Court has granted such
dismissals with prejudice for a plaintiff’s failure to comply with court orders.7
Subaru asserts that Plaintiff’s request for dismissal without prejudice leaves Subaru open
to potential legal prejudice since, given Plaintiff’s domicile, it is conceivable she could attempt to
re-file in the state of South Carolina.8 Subaru avers that notwithstanding the intricacies of potential
jurisdictional questions, timeliness, and issue preclusion, a dismissal without prejudice leaves
Subaru in a position for potential prejudice should Plaintiff attempt to bring suit elsewhere.9
Subaru submits that should Plaintiff attempt to re-file, Subaru will be further prejudiced by the
passage of time because time passage will lead to the destruction of critical evidence.10 In sum,
Subaru contends that in light of Plaintiff’s failure to retain new counsel, failure to produce Rule
26 disclosures, failure to comply with Court orders, her admission that her attorney could not
substantiate her demand, and the absence of any evidence supportive of Plaintiff’s claims, Subaru
seeks to modify Plaintiff’s request for voluntary dismissal without prejudice to a dismissal with
prejudice.11
6 Rec. Doc. 25-1 at 2.
7 Id. citing Morris v. Ocean Systems, 730 F.2d 248, 251 (5th Cir. 1984); Tymon v. State Farm Fire & Cas.
Co., No. CV 23-5571, 2024 WL 623935 (E.D. La. Feb. 14, 2024).
8 Id. at 3.
9 Id.
10 Id.
11 Id.
Considering the lack of opposition to Subaru’s motion, Plaintiffs letter!” admitting the
lack of evidence to substantiate her claims, and potential prejudice faced by Subaru, the Court
finds that a dismissal of Plaintiffs claims with prejudice is appropriate. Accordingly,
IT IS HEREBY ORDERED that Subaru’s Motion to Dismiss with Prejudice!’ is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Motion to Dismiss without Prejudice is
DENIED.
IT IS FURTHER ORDERED that Plaintiff's claims in the above captioned matter against
all Defendants are DISMISSED WITH PREJUDICE, with each party to bear its own costs.
NEW ORLEANS, LOUISIANA this 20th day of March, 2024.
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
” Rec. Doc. 24.
Rec. Doc. 25.
4 Rec. Doc. 24.