Brown v. City of Chattanooga

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

HOWARD BROWN, )

) Case No. 1:24-cv-42

Plaintiff, )

) Judge Travis R. McDonough

v. )

) Magistrate Judge Susan K. Lee

CITY OF CHATTANOOGA, et al., )

)

Defendants. )

MEMORANDUM OPINION

Before the Court is Plaintiff Howard Brown’s motion to withdraw his complaint. (Doc.

70.) For the following reasons, Plaintiff’s motion (id.) will be GRANTED.

I. BACKGROUND

Plaintiff filed this action on January 18, 2024, bringing claims under 42 U.S.C. § 1983

and under state common law. (See Doc. 1.) On October 2, 2024, Plaintiff filed a motion to

amend his complaint. (See Doc. 65.) Before the Court could rule on the motion, Plaintiff filed a

motion to withdraw his complaint on October 18, 2024,1 (see Doc. 70), and the Court ordered

Defendants to respond to Plaintiff’s motion to determine whether Defendants opposed a

dismissal without prejudice. (See Doc. 71.) Before Defendants could respond, Plaintiff filed a

motion to stay the case. (See Doc. 72.) The Court construed this motion as also requesting the

certification of an interlocutory appeal and denied the motion. (See Doc. 74.) In the order

denying Plaintiff’s motion to stay, the Court ordered Plaintiff to respond within two weeks to

1 The Court construes Plaintiff’s motion (Doc. 70) as requesting a dismissal of the case under

Rule 41(a)(2), as Plaintiff references Rule 41 in his motion.

inform the Court whether he intended to pursue the action or to dismiss it pursuant to his motion

to withdraw his complaint. (Id. at 2.) The Court placed Plaintiff on notice that the Court could

dismiss his action if he failed to respond by that deadline. (Id.) Plaintiff has failed to respond to

the Court’s order within the time allotted, and, as a result, his motion to withdraw his complaint

is ripe for review.

Defendants oppose a dismissal without prejudice, arguing that Plaintiff wasted the

resources of the Court and of defense counsel, as: (1) Plaintiff informed Defendants that he

would be withdrawing his complaint on October 10, 2024, stating that, “I will be withdrawing

my complaint; I think I’ve made my point” (see Doc. 73-1); (2) Defendants sent Plaintiff a joint

stipulation of dismissal for his review by email (see Doc. 73, at 2; Doc. 73-3); (3) Plaintiff did

not respond to this email and instead filed his motion to stay the case (see Doc. 73, at 2); and (4)

after Defendants inquired as to Plaintiff’s position on the proposed joint stipulation for a third

time, Plaintiff replied “nah… I’ll let ya’ll respond to the court’s order.”2 (See id.; Doc. 73-5.)

Defendant Thomas also moves for attorney fees under 42 U.S.C. § 1988 (Doc. 73, at 3), while

Defendant Garrett anticipates moving for attorney fees at the close of the case (Doc. 76, at 2).

All Defendants request that Plaintiff be ordered to pay court costs. (Docs. 73, 75, 76.)

II. STANDARD OF LAW

A. Rule 41

Rule 41(a)(2) of the Federal Rules of Civil Procedure states:

Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's

request only by court order, on terms that the court considers proper. If a

2 Plaintiff is referring to the Court’s order requiring Defendants’ response to his motion to

withdraw his complaint, which stated that, “Defendants SHALL respond to Plaintiff’s motion

(Doc. 70) on or before November 1, 2024, stating whether they oppose the dismissal of

Plaintiff’s action without prejudice. Alternatively, the parties may file a stipulation of dismissal

in accordance with Rule 41(a)(1)(A)(ii) within the timeframe provided.” (See Doc. 71.)

defendant has pleaded a counterclaim before being served with the plaintiff's

motion to dismiss, the action may be dismissed over the defendant's objection

only if the counterclaim can remain pending for independent adjudication. Unless

the order states otherwise, a dismissal under this paragraph (2) is without

prejudice.

“[T]he purpose of Rule 41(a)(2) is to protect the nonmovant . . . from unfair treatment.”

Bridgeport Music, Inc. v. Universal-MCA Music Pub., Inc., 583 F.3d 948, 953 (6th Cir. 2009).

“The Court must consider whether the non-movant ‘would suffer plain legal prejudice’ as the

result of a dismissal without prejudice.” Sohi v. Diversified Adjustment Serv., Inc., No. 1:15-CV-

563, 2016 WL 2745298, at *2 (S.D. Ohio May 10, 2016) (quoting Jones v. W. Rsrv. Transit

Auth., 455 F. App’x 640, 643 (6th Cir. 2012)). The Court must also consider: (1) the non-

movant’s “effort and expense of preparation for trial,” (2) “excessive delay and lack of diligence

on the part of the [movant] in prosecuting the action,” (3) “insufficient explanation for the need

to take a dismissal,” and (4) “whether a motion for summary judgment has been filed by the

[non-movant].” Bridgeport, 583 F.3d at 953 (quoting Grover by Grover v. Eli Lilly and Co., 33

F.3d 716, 718 (6th Cir.1994)). “The mere possibility that the nonmovant would face a second

lawsuit is an insufficient basis for finding” dismissal under Rule 41(a)(2) unwarranted. Sohi,

2016 WL 2745298 at *2 (citing Jones, 455 F. App’x at 643). “A Rule 41(a)(2) dismissal may be

conditioned on whatever terms the district court deems necessary to offset the prejudice the [non-

movant] may suffer from a dismissal without prejudice.” Id. at 954 (citations omitted). The

Court may require the movant to pay a non-movant’s costs, but this is not required under Rule

41(a)(2). See id.

B. 42 U.S.C. § 1988

Pursuant to 42 U.S.C. § 1988(b), “in any action to enforce a provision of” § 1983, “the

court, in its discretion, may allow the prevailing party” a “reasonable attorney’s fee as part of the

costs.” Recovery under this statute is the default for a prevailing § 1983 plaintiff; the United

States Supreme Court has directed that a “prevailing plaintiff should ordinarily recover an

attorney’s fee unless special circumstances would render such an award unjust.” Hensley v.

Eckerhart, 461 U.S. 424, 429 (1983) (internal quotation marks and citations omitted). However,

a prevailing party can be either a defendant or a plaintiff. Christiansburg Garment Co. v. EEOC,

434 U.S. 412, 420 (1978) (holding that § 1988 authorizes a fee award to a prevailing defendant,

who should also be protected “from burdensome litigation having no legal or factual basis”).

Under § 1988, “[a] prevailing defendant should only recover upon a finding by the district court

that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not

brought in subjective bad faith.” Wolfe v. Perry, 412 F.3d 707, 720 (6th Cir. 2005) (quoting

Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th Cir. 1994)). Additionally, § 1988 does not

allow for the recovery of attorney fees related to state-law claims. Ash v. Bezotte, No. 10-11875,

2013 WL 4777176, at *3 (E.D. Mich. Sept. 5, 2013).

In adjudicating a defendant’s request for attorney fees pursuant to § 1988, the Court

should determine whether: (1) the defendant is a “prevailing party”; (2) the plaintiff’s action was

frivolous, unreasonable, or without foundation; (3) the compensation sought is reasonable, as

assessed by the lodestar method; and (4) there are any exceptional considerations requiring an

upward or downward adjustment. See Hensley, 461 U.S. at 433–34; Wolfe, 412 F.3d 707 at 720.

The lodestar method requires a court to multiply the number of hours reasonably expended by

the applicable hourly market rate for legal services to find an objective basis for a lawyer’s

services. Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). There is a strong presumption that the

lodestar figure is reasonable, but a court should scrutinize the amount to ensure it does not

produce windfalls to attorneys. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010);

Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995).

III. ANALYSIS

A. Dismissal Under Rule 41

The Court finds that a dismissal with prejudice is not warranted under Rule 41. All

Defendants argue that Plaintiff wasted judicial resources.3 (See Doc. 73, at 2; Doc. 75; Doc. 76.)

Defendant Garrett specifically argues that Plaintiff willfully thwarted the judicial proceedings in

this matter, or at the least, recklessly disregarded the effect his conduct would have on the

proceedings. (See Doc. 76, at 1–2.) However, Defendants’ arguments against a dismissal

without prejudice only focus on the second factor of the Court’s Rule 41(a)(2) inquiry. See

Bridgeport, 583 F.3d at 953. The Court will use all factors of the test, and in doing so, it

concludes that a dismissal without prejudice is appropriate.

i. Effort and Expense

The first factor of the Rule 41(a)(2) inquiry weighs in favor of dismissal. The parties

completed discovery in this matter on October 28, 2024, and this process was not abnormally

onerous. While Defendants certainly expended reasonable effort in defending against Plaintiff’s

claims, they have not posited any reason that would suggest their efforts would not be useful if

Plaintiff were to bring a subsequent action. See Harper v. Muskingum Watershed Conservatory

Dist., No. 2:14-CV-2539, 2015 WL 2084709, at *2 (S.D. Ohio May 4, 2015) (considering the

applicability of “discovery and motions” if the plaintiff were to re-file a suit in state court);

Cogent Solutions Grp., LLC v. Brown, No. 2:12–CV–665, 2013 WL 6116052, at *6 (S.D. Ohio

3 The City of Chattanooga and Defendant Garrett incorporate Defendant Thomas’s response

(Doc. 73) into their responses. (See Doc. 75; Doc. 76, at 2.)

Nov. 20, 2013) (“A final point cuts against a finding of plain legal prejudice-it appears that much

of the effort and expense devoted to this case would be useful in a subsequently filed action.”);

Rosenthal v. Bridgestone/Firestone, Inc., 217 F. App’x 498, 502 (6th Cir. 2007) (affirming

dismissal because the defendants’ efforts would be useful in a subsequent action). In Cogent

Solutions Group, LLC v. Brown, the court also considered the amount of time the case had been

open and the time left until trial when evaluating the defendant’s effort and expense. 2013 WL

6116052 at *6. The court found that this factor favored dismissal when the plaintiff “moved to

dismiss this case well before trial and almost exactly one year after it began.”4 See id. Here, trial

was four months away when Plaintiff moved to dismiss his complaint and the action had been

open for less than a year (see Docs. 1, 64, 70). As such, the Court finds that this factor favors

dismissal.

ii. Delay in Prosecution

Defendants’ arguments primarily address the second factor of the Rule 41(a)(2) test, but

the Court finds them unconvincing. Defendants largely point to Plaintiff’s lack of decorum and

diligence following his motion to withdraw his complaint. (See Docs. 73, 75, 76.) However,

they also cite Plaintiff’s refusal to schedule a deposition. (Doc. 73, at 2.) While the Court agrees

that Plaintiff’s refusal to sit for a deposition and his conduct surrounding his motion to dismiss

the action was inappropriate, it fails to show Plaintiff displayed a lack of diligence in prosecuting

the action in its entirety. Most of this conduct occurred over a span of roughly three weeks. (See

Doc. 73, at 1–2.) The Court finds that Plaintiff’s apparent good-faith effort in the time preceding

his motion to withdraw his complaint outweighs his conduct after. Cf. Harper, 2015 WL

4 The Cogent court also considered the potential utility of the defendant’s efforts in a subsequent

action. Id.

2084709 at *2 (finding that a one-month delay is not “excessive”); Nuovo v. Whitacre, No. 2:10-

CV-240, 2010 WL 3825376, at *4 (S.D. Ohio Sept. 28, 2010) (considering the plaintiff’s “good

faith in bringing the suit” when ruling on a motion for voluntary dismissal). Further, Defendants

suffered minimal prejudice from Plaintiff’s reluctance to sit for a deposition, as he informed

them of his intent to dismiss the action before the discovery period closed. (See Doc. 73, at 1;

Doc. 64, at 2 (stating that discovery deadline was October 28, 2024).) The second factor of the

Rule 41(a)(2) test supports dismissal.

iii. Explanation for Dismissal

The third factor of the Rule 41(a)(2) inquiry favors Defendants. Plaintiff explains that he

moved to withdraw his complaint after “Defendants have been allowed to delay the proceedings,

avoid santions [sic], and use technical lawfare to exhaust the Plaintiff’s resources.” (Doc. 70.)

Defendants have not engaged in any conduct of the sort. To the extent Plaintiff’s motion to

withdraw his complaint was motivated by a lack of resources, this could be a valid reason for a

dismissal without prejudice. See Bridgeport, 583 F.3d at 955 (affirming dismissal when the

district court concluded that the “plaintiffs’ cost-benefit analysis provided a reasonable

explanation for seeking dismissal”). However, Plaintiff has offered insufficient evidence and

explanation to support this assertion, as the quote above provides the entirety of Plaintiff’s

explanation. (See Doc. 70.) This factor weighs against a dismissal without prejudice.

iv. Pending Summary Judgement

The last factor of the Rule 41(a)(2) inquiry supports dismissal. This question is

straightforward, as the Court must only consider whether Defendants have filed motions for

summary judgment. See Bridgeport, 583 F.3d at 953. Defendant Garrett filed a motion for

summary judgment on November 25, 2024, nearly a month after Plaintiff moved to dismiss the

suit. (See Docs. 70, 77.) The Court finds that Defendant Garrett will suffer minimal prejudice in

this circumstance, as he had clear notice that the Court could dismiss the suit pursuant to

Plaintiff’s motion when he elected to move for summary judgment. Even assuming that

Defendant Garrett would be prejudiced by a dismissal, this factor of the Rule 41(a)(2) inquiry is

not controlling. See Rosenthal, 217 F. App’x at 502 (“[T]he existence of a pending motion for

summary judgment is a factor that should be considered, but its existence does not mandate a

finding of plain legal prejudice.”). Because no summary judgment motions were pending at the

time Plaintiff moved to withdraw his complaint, this factor favors dismissal.

v. The Rule 41(a)(2) Factors Favor Dismissal Without Prejudice

Three of the four factors in the Rule 41(a)(2) inquiry favor dismissing Plaintiff’s case.

Although Plaintiff offers little explanation for his motivation to dismiss the case, this alone in

insufficient to show Defendants will suffer prejudice significant enough to deny dismissal. See

Cogent, 2013 WL 6116052 at *9 (“While important, the explanation-for-dismissal factor does

not control the analysis of a motion to dismiss under Rule 41(a)(2).”).

Additionally, to the extent Defendants argue that Rule 41(b) warrants a dismissal with

prejudice, the Court is unconvinced. Defendant Garrett cites part of the standard describing

when a dismissal with prejudice is warranted under 41(b), as he concludes that Plaintiff

“thwarted” this judicial proceeding. (See Doc. 76, at 1–2); Schafer v. City of Defiance Police

Dep’t, 529 F.3d 731, 737 (6th Cir. 2008) (“To support a finding that a plaintiff's actions were

motivated by willfulness, bad faith, or fault under the first factor, the plaintiff's conduct must

display either an intent to thwart judicial proceedings or a reckless disregard for the effect of his

conduct on those proceedings.”) (internal quotation marks and citation omitted). Dismissal with

prejudice is a “harsh remedy reserved for extreme situations where a plaintiff has engaged in a

clear pattern of delay or contumacious conduct.” Luckey v. Butler Cnty., No. 1:05CV388, 2006

WL 91592, at *3 (S.D. Ohio Jan. 13, 2006) (quoting Holt v. Pitts, 619 F.2d 558, 562 (6th Cir.

1980) (internal quotation marks omitted). While the Court agrees that a portion of Plaintiff’s

conduct was inappropriate, it does not find such conduct “extreme” or that Plaintiff engaged in a

pattern of such conduct. See Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir.1997)

(affirming a dismissal with prejudice when the plaintiff was “stubbornly disobedient and

willfully contemptuous” over the course of a year).

The Court finds that dismissal of this case without prejudice is appropriate. Defendants

are not entitled to attorney fees or costs as a condition of dismissal. See Ball v. Tenn. Valley

Auth., No. 2:13-CV-904, 2015 WL 556437, at *5 (S.D. Ohio Feb. 10, 2015) (“The award of

costs and attorney fees for a Rule 41(a) (2) dismissal is discretionary.”) (citing DWG Corp. v.

Granada Invs., Inc., 962 F.2d 1201, 1202 (6th Cir. 1992)).

B. Attorney Fees Under 42 U.S.C. § 1988

Defendant Thomas moves for attorney fees under 42 U.S.C. § 1988, and the Court finds

that Defendant Thomas is not entitled to fees. Outside of the arguments set forth above,

Defendant Thomas provides no evidence suggesting that Plaintiff’s “action was frivolous,

unreasonable, or without foundation.” (See Doc. 73); 42 U.S.C. § 1988. To recover under §

1988, Defendant Thomas must show that Plaintiff’s action was without “legal or factual basis.”

See Christiansburg Garment, 434 U.S. at 420. The evidence concerning Plaintiff’s conduct has

no bearing on the “legal or factual basis” of his suit. Further, this evidence is insufficient to

show that Plaintiff filed this action for an improper purpose. As the Court has already explained,

Plaintiff appears to have pursued this action in good faith, even if his decorum was lacking at

times. A short stretch of unprofessional conduct does not nullify his other efforts. Accordingly,

Defendant Thomas is not entitled to attorney fees under § 1988.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s motion to withdraw his complaint (Doc. 70) is

GRANTED. This action will be DISMISSED WITHOUT PREJUDICE pursuant to Rule

41(a)(2). Defendant Thomas’s request for attorney fees under 42 U.S.C. § 1988 (Doc. 73) is

DENIED. Plaintiff’s motion for leave to amend his complaint (Doc. 65) is DENIED AS

MOOT. Defendant Garrett’s motion for summary judgment (Doc. 77) is DENIED AS MOOT.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

/s/ Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE