The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Currently before the Court is Plaintiff's Motion to Dismiss [#32], filed by plaintiff on May 12, 2003, in which plaintiff seeks the voluntary dismissal of this action"with each party to bear its own costs." Plaintiff's Motion to Dismiss ("Pl.'s Mot.") at 1. Plaintiff states the reason he is seeking to have this matter dismissed is because discovery"has established that it is not in his interest to continue the case." Id.
Defendant has filed an opposition to plaintiff's motion to dismiss in which it argues that the Court should deny the motion and instead grant defendant's supplemental motion for summary judgment*fn1 which was filed by the defendant on April 10, 2003, or, alternatively, dismiss this action with prejudice and award defendant"its reasonable attorney's fees for having to litigate what can now be unquestionably recognized as a frivolous lawsuit by plaintiff." Washington Gas Light Company's Response to Plaintiff's Motion to Dismiss ("Def.'s Opp'n") at 1. Defendant posits that the current lawsuit is"part of a pattern of meritless litigation by plaintiff against Washington Gas." Id. ¶ 7.*fn2 Defendant contends that"[p]laintiff's tactics, in this, his latest action, have caused legal prejudice to Washington Gas" because the defendant has filed a motion for summary judgment and plaintiff has failed to adequately justify the reason for his willingness to dismiss his action. Id. ¶ 9. Thus, defendant argues, to mitigate any prejudice to it, summary judgment should be entered in its favor, or alternatively, this action should be dismissed with prejudice. Id. ¶¶ 11-12. If, on the other hand, the Court is inclined to grant plaintiff's motion, defendant requests that the Court award defendant its attorney's fees to compensate it for filing its supplemental motion to dismiss which it would not have filed if"plaintiff [had] not waited almost two months to take a non-suit on litigation he now concedes he knew was meritless after the last deposition." Id. ¶ 12.
In plaintiff's reply,*fn3 he argues that"[t]he filing of a motion for summary judgment alone is not sufficient to warrant denying a voluntary dismissal." Plaintiff's Response [sic] to Washington Gas Light Company's Response to Plaintiff's Motion to Dismiss ("Pl.'s Reply") at 2. Plaintiff posits that there would be no"clear legal prejudice" to Washington Gas if the Court grants plaintiff's motion for voluntary dismissal. Id. at 3. Furthermore, plaintiff argues that he filed his motion to dismiss as soon as"all the facts... show[ed] [that] it was not in his interest to continue the case." Id. at 2.*fn4
Plaintiff's voluntary dismissal falls under Federal Rule of Civil Procedure 41(a). Pursuant to this rule:
(1)... [A]n action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or...
(2)... Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper.
(emphasis added). Here, because defendant has filed a motion for summary judgment, plaintiff's dismissal, if it is granted, would be subject to the requirements of subsection (a)(2) of Rule 41. Voluntary dismissals pursuant to Rule 41(a)(2) should be granted in a way that"protect[s]... defendant[s] from undue prejudice or inconvenience from plaintiff's voluntary dismissal."
Collins v. Baxter Healthcare Corp., 200 F.R.D. 151, 152 (D.D.C. 2001) (citation omitted). Accordingly, the court may impose"such terms and conditions" as it"deems proper" when granting a plaintiff's motion for voluntary dismissal. Fed. R. Civ. P. 41(a)(2). As the District of Columbia Circuit Court has stated,
[t]he purpose of the'terms and conditions' clause is to protect a defendant from any prejudice or inconvenience that may result from a plaintiff's voluntary dismissal.... Attorneys' fees and costs are commonly awarded as one such'term and condition' for a voluntary dismissal, for those costs were undertaken unnecessarily in such a case.
GAF Corp. v. Transamerica Ins. Co., 665 F.2d 364, 367 (D.C. Cir. 1981). The court should only deny a plaintiff's motion for voluntary dismissal it if finds that"dismissal will inflict clear legal prejudice on a defendant.'" Collins, 200 F.R.D. at 152 (quoting Conafay v. Wyeth Labs., 841 F.2d 417, 419 (D.C. Cir. 1988))."Legal prejudice includes'effort and expense in preparing for trial, excessive delay and lack of diligence in prosecuting the action, insufficient explanation for taking non-suit, and the filing of motions for summary judgment.'" Piedmont Resolution L.L.C. v. Johnston, Rivlin & Foley, 178 F.R.D. 328, 331 (D.D.C. 1998) (citations omitted) (emphasis in original). However, the pendency of a motion for summary judgment is not sufficient reason, standing alone, to deny a plaintiff's motion for voluntary dismissal. Robinson v. England, 216 F.R.D. 17, 18 (D.D.C. 2003) (citation omitted); Piedmont, 178 F.R.D. at 331 ("[I]t is abundantly clear that the pendency of summary judgment motions alone is insufficient grounds for denying a motion to dismiss where... the plaintiff has not been dilatory in bringing its motion.") (citations omitted).
In a case analogous to the present situation, and cited by both parties, the District of Columbia Circuit affirmed a district court's grant of attorney's fees to a defendant that had filed its motion for summary judgment prior to the plaintiff filing its motion for voluntary dismissal. GAF Corp., 665 F.2d at 367. In GAF Corp., the plaintiff had filed an action in district court seeking a declaration that three insurance companies were obligated to defend and indemnify it in numerous tort suits related to asbestos exposure. Id. at 365. One of the defendant insurance companies, Transamerica, filed a motion for summary judgment. Id. at 366. Approximately five months after the motion was filed, and in lieu of responding to the motion for summary judgment, GAF filed its own motion seeking dismissal of its action because it agreed with one of the other defendants that an indispensable party had not been joined in the lawsuit and could not be joined in the District of Columbia without depriving the district court of jurisdiction. Id. GAF subsequently filed its action against the insurers in state court. Id. The court granted GAF's motion and dismissed the case without prejudice, with each party bearing its own costs. Id. Transamerica appealed this decision and GAF filed a motion for summary affirmance, which the court of appeals granted, noting that its grant of summary affirmance to GAF in no way prejudiced Transamerica's ...