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Guttenberg v. Emery

United States District Court, D. Columbia.

September 23, 2014

DR. STEVEN A. GUTTENBERG, et al., Plaintiffs,
DR. ROBERT W. EMERY, et al., Defendants

Page 185

For STEVEN A. GUTTENBERG, Dr., STEVEN A. GUTTENBERG, D.D.S, MD, PLLC, Plaintiffs: Geoffrey Paul Gitner, Kerry Brainard Verdi, LEAD ATTORNEYS, MARTIN & GITNER, PLLC, Washington, DC.

For ROBERT W. EMERY, Defendant: Angela Donovan Sheehan, Charles L. Simmons, Jr., Sonia Cho, LEAD ATTORNEYS, GORMAN & WILLIAMS, Baltimore, MD; Brian L Schwalb, Moxila A. Upadhyaya, Seth A. Rosenthal, LEAD ATTORNEYS, Washington, DC.

Page 186


JOHN D. BATES, United States District Judge.

Resolving litigation over an earlier dispute, two dentists signed a settlement agreement that included a non-disparagement clause. Despite that agreement, one dentist (and his wife) allegedly bad-mouthed the other, spawning this lawsuit and a flurry of motions, oppositions, and replies. This dentists' quarrel has run its course, however. Now before the Court is [35] plaintiff's motion to voluntarily dismiss his case based on defendant's family emergency. Upon consideration of the parties' filings, the applicable law, and the entire record herein, and for the reasons described below, the Court will grant plaintiff's motion without prejudice.


The facts of this case have been described, at some length, elsewhere. See 3/19/2014 Mem. Op. [ECF No. 22] at 1-2; 5/16/2014 Mem. Op. [ECF No. 27] at 1-2. For present purposes, it suffices to recall that plaintiff Dr. Steven Guttenberg and defendant Dr. Robert Emery were once joint shareholders in an oral surgery practice in the D.C. area. Pl.'s Mem. in Supp. of Mot. for Voluntary Dismissal [ECF No. 35-1] (" Pl.'s Mem." ) at 2. When the relationship between the two dentists soured, their professional venture failed, prompting a separate lawsuit and settlement agreement in 2008. Id. at 3; see also Ex. A to Sealed Document [ECF No. 41-1] (" Settlement Agreement" ).[1]

That agreement led to this litigation. The agreement contained, among other things, a " Non-Disparagement" clause, see Settlement Agreement at 10, which forbade the parties from disparaging each other. Guttenberg alleges that Emery and his wife, Katherine Borg-Emery, violated this clause. As Guttenberg tells the story, Emery has been " disparaging him in personal and professional circles" for years, and in 2013 Borg-Emery told a dental hygienist that Guttenberg had frequently engaged in inappropriate sexual relationships with his employees. Pl.'s Mem. at 3-4. In response to Guttenberg's complaint, Emery filed a motion to dismiss, which this Court granted in part. See 5/16/2014 Mem. Op. at 1. The Court

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entirely removed Borg-Emery from the case on the ground that she was not a party to the dentists' settlement agreement (and hence was not bound by its non-disparagement clause), and the Court eliminated all but one of Guttenberg's claims against Emery (the breach-of-contract claim based on the non-disparagement clause). Id. at 7-17.

The case remained in this posture until August 13, 2014. On that date, Guttenberg filed a motion pursuant to Federal Rule of Civil Procedure 41(a)(2) to voluntarily dismiss his lone remaining claim. Pl.'s Mot. for Voluntary Dismissal [ECF No. 35] (" Pl.'s Mot." ). His rationale: He had recently learned that Emery's wife had been diagnosed with a serious illness, and Guttenberg consequently " ha[d] no desire to pursue this litigation in which Ms. Borg-Emery would remain a central figure, or to place the additional burden of this litigation on Dr. Emery." Pl.'s Mot. at 2. In response, Emery asked the Court not only to dismiss the case, but also to require Guttenberg to pay the attorney's fees and costs he had incurred defending against Guttenberg's claims. See Def.'s Resp. to Pl.'s Mot. [ECF No. 37] (" Def.'s Resp." ) at 1. Guttenberg replied, see Pl.'s Reply to Def.'s Resp. to Pl.'s Mot. [ECF No. 38] (" Pl.'s Reply" ), and Emery asked for leave to file a sur-reply. See Ex. A to Def.'s Mot. for Leave to File Sur-Reply [ECF No. 39-1] (" Def.'s Sur-Reply" ). The Court will now grant Emery's sur-reply motion.



Where, as here, the defendant has already answered the plaintiff's complaint, the plaintiff " may" --in the court's discretion--voluntarily dismiss his action " only by court order, on terms that the court considers proper." Fed.R.Civ.P. 41(a)(2). The courts will typically grant such requests after asking two questions. First, did the plaintiff move for voluntary dismissal in " good faith" ? And second, will the defendant " suffer prejudice other than the prospect of a second lawsuit or some tactical disadvantage" based on the dismissal? Conafay v. Wyeth Labs., 793 F.2d 350, 353, 253 U.S.App.D.C. 279 (D.C. Cir. 1986).

The Court has no reason to doubt Guttenberg's good faith in this case. As Guttenberg's motion to dismiss explains, he attended a meeting of the District of Columbia's Dental Society Executive Committee on June 30, 2014. That night, he learned that Emery's wife had been diagnosed with a very serious, life-threatening illness. See Pl.'s Mot. at 4. Also that night, and with this news in mind, " Guttenberg called his counsel and informed him to end the case against the Emerys." Id. at 4-5. Courts have found good faith under far less laudable circumstances. See, e.g., Busby v. Capital One, N.A., 841 F.Supp.2d 49, 55 (D.D.C. 2012) (finding good faith where " plaintiff's motion was filed as a timely reaction to an order . . . which dismissed the majority of her claims" ); Robinson v. England, 216 F.R.D. 17, 18 (D.D.C. 2003) (finding good faith where plaintiff was " unable to find suitable Counsel and continue th[e] action for financial reasons" ) (internal quotation marks omitted)).

Indeed, Emery only half-heartedly questions Guttenberg's good faith. He implies that Guttenberg's " desire to dismiss the case at this stage is a reaction to the fact that [Guttenberg] lack[s] a good faith basis to hold Dr. Emery liable for breach of contract and . . . [is] unable to articulate any contractual damages despite alleging them." Def.'s Resp. at 4. But Emery is not really questioning Guttenberg's good faith. After all, ...

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