[PUBLISH] 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

_________________________ 

No. 13-14863 

_________________________ 

D.C. Docket No. 1:13-cv-01254-TCB 

DIANA ARIAS, 

 Plaintiff-Appellee, 

versus 

JOSEPH T. CAMERON, et al., 

 Defendants-Appellants. 

__________________________ 

Appeal from the United States District Court 

for the Northern District of Georgia 

__________________________ 

(January 20, 2015) 

Before WILSON, ROSENBAUM, and BLACK, Circuit Judges. 

Case: 13-14863 Date Filed: 01/20/2015 Page: 1 of 28 
2 

ROSENBAUM, Circuit Judge: 

On the football field, a team with a weak defense may choose to emphasize 

its offense. The trouble is, in the end, it can be hard to win without a reliable 

defense. 

That is much like the problem that Defendants-Appellants Joseph T. 

Cameron and The Dow Chemical Company (“Dow”) have in this case. PlaintiffAppellee Diana Arias sued Cameron and Dow for injuries that Cameron allegedly 

inflicted on Arias while Cameron was acting within the course of his employment 

for Dow. When Defendants sought judgment in the case on the basis that Arias 

had allegedly failed to timely perfect service upon them before the statute of 

limitations ran, Arias moved to voluntarily dismiss the case without prejudice. By 

doing so, Arias hoped to take advantage of Georgia law, which allows a plaintiff 

who originally files a case within the statute-of-limitations period to voluntarily 

dismiss her case and refile it within six months, thereby triggering a new period in 

which to timely effect service. Defendants went on the offensive, opposing Arias’s 

motion for voluntary dismissal on the basis that a voluntary dismissal without 

prejudice would prejudice them by depriving them of their statute-of-limitations 

defense. 

The district court granted Arias’s motion and voluntarily dismissed the case 

without prejudice. Defendants now appeal. 

Case: 13-14863 Date Filed: 01/20/2015 Page: 2 of 28 
3 

But Defendants’ statute-of-limitations defense is, by no means, a certain 

winner. So their offense—that they will suffer prejudice as the result of a 

voluntary dismissal without prejudice because they will lose their statute-oflimitations defense—necessarily falters since it depends on their unreliable 

defense. 

And even if Defendants had a viable statute-of-limitations defense that 

would be destroyed by a voluntary dismissal without prejudice, all of the other 

equities in this case—which a district court should consider under Rule 41(a)(2) in 

determining whether to grant a motion for voluntary dismissal—favor Arias. For 

these reasons, we find that the district court did not abuse its discretion when it 

granted Arias’s motion for voluntary dismissal without prejudice.

I. 

A. The Nature of the Case 

In her complaint, Arias alleged that, on March 19, 2011, she was riding her 

bicycle in Georgia when Defendant-Appellant Cameron, driving a rental car, failed 

to yield and collided with her. According to the complaint, the car that Cameron 

was driving was insured by Cameron’s employer, Dow, and Cameron was 

operating the car within the course and scope of his employment. As a result of the 

incident, the complaint asserts, Arias suffered “great bodily injuries.” 

Case: 13-14863 Date Filed: 01/20/2015 Page: 3 of 28 
4 

When the incident occurred, Cameron produced a California driver’s license 

to the Cobb County Police Department, which cited Cameron for failure to yield 

under Georgia statute O.C.G.A. § 40-6-71 and issued Cameron a ticket. 

On February 25, 2013, just over three weeks before the end of Georgia’s 

two-year statutory period for filing such claims,1

 Arias filed suit in Cobb County 

State Court against Cameron and Dow. She claimed that she was entitled to 

damages under two theories of recovery: negligence and stubborn litigiousness. 

B. Arias’s Initial Attempts at Service 

Upon the filing of her complaint, Arias attempted to serve both Cameron and 

Dow. With regard to Cameron, Arias stated in the proceedings below that she 

believed him to be a California resident, based on his production of a California 

driver’s license at the time of the incident and based on Georgia law that generally 

requires all residents of the state for more than thirty days to obtain a Georgia 

driver’s license before operating a motor vehicle in the state, see O.C.G.A. § 40-5-

20(a). For this reason, Arias attempted to serve Cameron with the summons and 

complaint pursuant to Georgia’s Non-Resident Motorist Act, O.C.G.A. § 40-12-1, 

et seq. (“NRMA”), which sets forth requirements for service on those who are not 

residents of Georgia, as the service requirements relate to complaints involving the 

operation of a motor vehicle. 

 

1

 In Georgia, the statute of limitations for bringing a tort action involving claims of 

personal injuries is two years from date that the cause of action accrued. See O.C.G.A. § 9-3-33. 

Case: 13-14863 Date Filed: 01/20/2015 Page: 4 of 28 
5 

In an effort to comply with the NMRA, on March 13, 2013, Arias mailed the 

summons and complaint to the Georgia Secretary of State to obtain service on 

Cameron. Arias also sent Cameron a copy of the summons and complaint by 

certified mail on the same date, which Cameron later received on March 23, 2013. 

With respect to Dow, counsel for Arias attested in the district-court 

proceedings that, on February 6, 2013, he visited the Georgia Secretary of State’s 

website to find the registered agent for Dow, but his query resulted in a showing of 

no agent for service of process in Georgia. According to counsel for Arias, he did 

not learn until “[m]uch later” that the website was “in transition and not 

functioning properly.” 

Based on the erroneous belief that Dow lacked a corporate presence in 

Georgia, Arias mailed a copy of the summons and complaint to Georgia’s 

Secretary of State on February 28, 2013, to obtain service on Dow in Delaware, its 

place of incorporation. Arias also sent the summons and complaint to Dow’s 

registered agent in Delaware via certified mail on March 13, 2013. On that same 

date, Arias sent the summons and complaint to the New Castle County Sheriff’s 

Department as well, to make service on Dow in Delaware. 

On March 19, 2013, the day upon which Dow contends that the two-year 

statute of limitations expired under O.C.G.A. § 9-3-33, Dow received the summons 

and complaint that Arias sent by certified mail on March 13, 2013. One week 

Case: 13-14863 Date Filed: 01/20/2015 Page: 5 of 28 
6 

later, on March 27, 2013, the New Castle County Sheriff’s Department personally 

served Dow’s registered agent in Delaware with the summons and complaint. 

Although Arias believed that she had adequately served Dow, on April 1, 

2013, Georgia’s Secretary of State sent counsel for Arias a letter stating that Dow 

was actually registered with the Office of Georgia Secretary of State, so the Office 

returned the documents that Arias’s counsel had sent it for service upon Dow. 

Alerted to the fact that Dow had a registered agent in Georgia, Arias immediately 

attempted to obtain personal service on Dow’s agent. Towards this end, on April 

4, 2013, Arias sent the summons and complaint to the Gwinnett County Sheriff’s 

Department for service on Dow’s Georgia agent. The Sheriff’s Department served 

Dow’s registered agent on April 9, 2013. 

C. Removal of the State Court Action and the Defendants’ Motion to Dismiss 

As a result of Arias’s service efforts, both Dow and Cameron received notice 

of Arias’s action, and, on April 17, 2013, Dow and Cameron removed the matter to 

federal court pursuant to 28 U.S.C. § 1441, asserting that the district court enjoyed 

diversity jurisdiction over the parties under 28 U.S.C. § 1332. 

One week later, on April 25, 2013, Defendants filed a motion to dismiss 

pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6), Fed. R. Civ. P. In the motion to 

dismiss, Defendants asserted that Arias had failed to timely and properly serve 

them, so the matter should be dismissed for improper service of process. They 

Case: 13-14863 Date Filed: 01/20/2015 Page: 6 of 28 
7 

further argued that dismissal should be with prejudice, since, at the time that 

Defendants filed their motion to dismiss, in Defendants’ view, Arias’s claims were 

time-barred under Georgia’s two-year statute of limitations. 

More specifically, Dow contended that Arias did not make proper service 

upon it until April 9, 2013, after the statute of limitations expired. As to Cameron, 

Defendants asserted that service on him under Georgia’s NRMA was improper 

because Cameron claimed to have actually been a resident of Georgia at the time 

of the accident.2

 So Defendants argued that Arias should have served Cameron in 

accordance with Georgia’s long-arm statute, O.C.G.A. § 9-10-91, which required 

Arias to personally serve Cameron in California—something that Arias had not 

done at that point.3

 

Cameron also contended that even if he were not considered to be a resident 

of Georgia at the time of the incident, the NMRA service was deficient because 

Arias had failed to comply with its strict requirements in that Arias allegedly had 

omitted required pieces of information and did not file the proper papers with the 

 

2

 Despite the fact that he still apparently had no Georgia driver’s license at the time of the 

incident, according to Cameron, he had lived in Georgia for approximately seven months and 

was considering staying in Georgia permanently. Cameron stated that he engaged in daily life 

activities such as entertaining friends at his home, had a gym membership, and received personal 

mail in Georgia. Id.

3

 Under O.C.G.A. § 9-10-94, a person of sound mind, who is of the age of majority and is 

a nonresident of Georgia subject to personal jurisdiction under Georgia’s long-arm statute must 

be served either personally or by leaving copies of the summons and complaint “at [his] dwelling 

house or usual place of abode with some person of suitable age and discretion then residing 

therein,” O.C.G.A. § 9-11-4(e)(7). 

Case: 13-14863 Date Filed: 01/20/2015 Page: 7 of 28 
8 

state court after service.4

 Cameron also alleged that the NMRA service was 

untimely since he did not receive the complaint and summons by certified mail 

until March 23, 2013, after the statute of limitations had expired. 

D. Arias’s Further Attempts to Serve Cameron 

The April 24, 2013, filing of the motion to dismiss put Arias on notice that 

Cameron contended that he was a resident of Georgia at the time of the accident. 

So Arias pursued personal service on Cameron in California, pursuant to Georgia’s 

long-arm statute—the provision that would govern service on Cameron in 

California if Cameron were a resident of Georgia at the time of the incident. 

On April 29, 2013, Arias sent the summons and complaint to the San 

Bernardino’s Sheriff’s Office in California to accomplish service on Cameron. 

According to the San Bernardino Sheriff’s Department, it attempted to serve 

Cameron on four occasions between May 4, 2013, and May 29, 2013, but it had no 

success. On the second attempt, the Sheriff’s Department left a business card with 

a name and contact telephone number, requesting that Cameron call the San 

Bernardino Sheriff’s Department, after no one answered Cameron’s door. Still, it 

was unable to serve Cameron. 

 

4

 For instance, although Arias mailed Cameron a copy of the complaint and summons, the 

defendants claimed that she did not include the notice of service upon the Secretary of State, as 

required by O.C.G.A. § 41-12-2. The defendants also contended that Arias did not “append” 

Cameron’s return receipt, her affidavit of compliance, and the summons, process, and complaint 

to the other papers and file them collectively with the state court to establish that she had 

complied with the NMRA. 

Case: 13-14863 Date Filed: 01/20/2015 Page: 8 of 28 
9 

So on May 16, 2013, counsel for Arias sent Cameron’s attorney a letter 

stating that the San Bernardino Sheriff’s Department had been trying to serve 

Cameron but was having no success. Counsel for Arias therefore asked Cameron’s 

counsel whether Cameron would be willing to waive service, but Cameron refused. 

As a result and after the San Bernardino Sheriff’s Department had made four 

unsuccessful service attempts on Cameron, on May 29, 2013, Arias hired a process 

server in California and requested that the server “stake out” Cameron’s residence 

until accomplishing service on Cameron. Two days later, on May 31, 2013, the 

process server personally served Cameron with the summons and complaint under 

Georgia’s long-arm statute. 

E. Cameron and Dow’s Motion for Summary Judgment 

While Arias was still attempting to serve Cameron under Georgia’s longarm statute, on May 8, 2013, Defendants filed their Answer to the complaint and 

re-filed their motion to dismiss as a motion for judgment on the pleadings, 

pursuant to Rule 12(c). Defendants continued to make essentially the same 

arguments concerning alleged failure to effect proper service. 

Arias timely opposed the motion, arguing that service of process had been 

timely and proper on both Defendants. She also asserted that it would be 

inequitable to penalize her under the circumstances, since she had diligently 

pursued service of Defendants. Along with her opposition to Defendants’ motion 

Case: 13-14863 Date Filed: 01/20/2015 Page: 9 of 28 
10 

for summary judgment, Arias moved for voluntary dismissal of the case without 

prejudice, pursuant to Rule 41(a)(2), Fed. R. Civ. P., as an alternative to the 

granting of summary judgment to Defendants. She did so for the express purpose 

of taking advantage of Georgia law, which allows a litigant to refile a case within 

six months of the voluntary dismissal of the action after the expiration of the 

applicable statute of limitations, when the original action was filed within the 

applicable statute of limitations. O.C.G.A. § 9-2-61. 

Defendants opposed Arias’s request for voluntary dismissal. Among other 

reasons, Defendants contended that voluntarily dismissing the case would 

eliminate Defendants’ statute-of-limitations defense, which was based on the claim 

of ineffective timely service of process, since Georgia law allows a plaintiff to 

revive her claims after the statute of limitations has already run and restart the 

service clock. 

The district court granted Arias’s motion to voluntarily dismiss her case and 

denied as moot Defendants’ motion for summary judgment. But the court 

nonetheless directed that if Arias chose to refile her claims, she must first pay 

Defendants’ attorneys’ fees and costs incurred in this action, as the district court 

determined those costs and fees. Defendants now appeal the district court’s 

voluntary dismissal of Arias’s claims.

 

Case: 13-14863 Date Filed: 01/20/2015 Page: 10 of 28 
11 

II. 

The decision of whether to grant a voluntary dismissal pursuant to Rule 

41(a)(2), Fed. R. Civ. P., falls within the sound discretion of the district court. 

Therefore, we review the district court’s decision to voluntarily dismiss the case 

for an abuse of discretion. See Fisher v. Puerto Rico Marine Mgmt., Inc., 940 F.2d 

1502, 1502-03 (11th Cir. 1991) (per curiam) (citing LeCompte v. Mr. Chip, Inc., 

528 F.2d 601, 604 (5th Cir. 1976)5

).

III. 

Rule 41(a) of the Federal Rules of Civil Procedure governs a plaintiff’s 

ability to dismiss an action voluntarily and without prejudice. See Fed. R. Civ. P. 

41(a). The rule allows a plaintiff to do so without seeking leave of court, as long 

as the defendant has not yet filed an answer or a motion for summary judgment. 

Fed. R. Civ. P. 41(a)(1)(A). If a defendant has made such a filing, the plaintiff 

must obtain permission from the court to voluntarily dismiss her case: “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.” Fed. R. Civ. P. 41(a)(2). 

Such a dismissal is considered to be without prejudice unless otherwise specified 

by the court. 

 

5

 Opinions of the Fifth Circuit issued prior to October 1, 1981, are binding precedent in 

the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981). 

Case: 13-14863 Date Filed: 01/20/2015 Page: 11 of 28 
12 

A district court enjoys broad discretion in determining whether to allow a 

voluntary dismissal under Rule 41(a)(2), Fed. R. Civ. P. Pontenberg v. Boston 

Scientific Corp., 252 F.3d 1253, 1255 (11th Cir. 2001) (per curiam). Generally 

speaking, a motion for voluntary dismissal should be granted unless the defendant 

will suffer clear legal prejudice other than the mere prospect of a second lawsuit. 

Id.; Fisher, 940 F.2d at 1502–03 (citing Durham v. Fla. E. Coast Ry. Co., 385 F.2d 

366, 368 (5th Cir. 1967)). 

The purpose of Rule 41(a)(2) “is primarily to prevent voluntary dismissals 

which unfairly affect the other side, and to permit the imposition of curative 

conditions.” McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856 (11th Cir. 1986) 

(citation and internal quotation marks omitted). We must consider the crucial 

question of whether “the defendant [would] lose any substantial right by the 

dismissal.” Pontenberg, 252 F.3d at 1255 (citation omitted). But, ultimately, the 

determination of whether to grant such a dismissal falls within the sound discretion 

of the district court. Fisher, 940 F.2d at 1503 (citing LeCompte, 528 F.2d at 604). 

While the district court “should keep in mind the interests of the defendant, for 

Rule 41(a)(2) exists chiefly for protection of defendants,” id., the court should also 

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. McCants, 781 F.2d at 857. 

Case: 13-14863 Date Filed: 01/20/2015 Page: 12 of 28 
13 

Here, Cameron and Dow contend that the district court erred in granting 

Arias’s motion for voluntary dismissal because the dismissal resulted in clear legal 

prejudice to them: the loss of their statute-of-limitations defense if Arias re-files 

her action in Georgia state court. We disagree that the district court abused its 

discretion under the circumstances of this case. 

A. Defendants’ Statute-of-Limitations Defense 

To explain why, we first consider the strength of Defendants’ statute-oflimitations defense. If the defense lacked merit, Defendants did not even arguably 

suffer any cognizable prejudice as a result of the voluntary dismissal. We begin 

with a review of applicable Georgia law. 

Although Georgia law requires a process server to effect service within five 

days of receipt of the complaint and summons, O.C.G.A. § 9-11-4(c)(5), it states 

no time limit within which a plaintiff must seek service. Ga. Farm Bureau Mut. 

Ins. Co. v. Kilgore, 462 S.E.2d 713, 715 (Ga. 1995). So, as long as service is 

perfected before the statute of limitations expires, “the mere time lapse between the 

date of filing and the date of service is not a valid basis for dismissal.” Id. (citation 

and internal quotation marks omitted). 

When a complaint is filed within the limitations period but service is 

perfected after the limitations period ends, service relates back to the time of filing 

“so as to avoid the limitation,” as long as service is timely perfected. Giles v. State 

Case: 13-14863 Date Filed: 01/20/2015 Page: 13 of 28 
14 

Farm Mut. Ins. Co., 765 S.E.2d 413 (Ga. Ct. App. 2014) (citation and quotation 

marks omitted). Although § 9-11-4(c)(5)’s five-day safe-harbor provision applies 

by its language to process servers only and not to parties, service is, nevertheless, 

always timely perfected if a party completes it within that period. See id. If 

perfected service is attempted before the expiration of the statute of limitations but 

is not made within the five-day period and the defendant asserts insufficiency of 

service after the statute of limitations expires, service can still be timely perfected 

and relate back to the time of filing, provided that the plaintiff acts with “the 

greatest possible diligence to serve the defendant from that point forward.”6

 

Moody v. Gilliam, 637 S.E.2d 759, 761 (Ga. Ct. App. 2006) (citation and quotation 

marks omitted). 

Here, Arias attempted to complete service on Dow three different ways 

before the statutory period ended on March 19, 2013: on February 28, 2013, she 

sent a copy of the process to Georgia’s Secretary of State to make service on Dow 

in Delaware; on March 13, 2013, by certified mail, she sent the process to Dow’s 

registered agent in Delaware; and also on March 13, 2013, she arranged for the 

New Castle County Sheriff’s Department to make service on Dow in Delaware. 

 

6

 Service is also timely perfected if the process server makes service within five days of 

receipt of the summons and complaint from the clerk of court, regardless of how much time 

lapses between the plaintiff’s filing of the action and the process server’s receipt of the complaint 

and summons from the clerk, provided that service is accomplished within the statutory period. 

See Giles, 765 S.E.2d 413. In this case, however, Plaintiff—not the clerk of court—provided the 

various process servers with process, apparently after Plaintiff had obtained it from the clerk. 

Case: 13-14863 Date Filed: 01/20/2015 Page: 14 of 28 
15 

So it is clear that Arias attempted to perfect service on Dow within the statutory 

period. 

Arias only learned that she did not perfect service on Dow through her 

February and March 2013 efforts when she received the letter dated April 1, 2013, 

that Georgia’s Secretary of State sent advising that Dow was registered with the 

Office of the Georgia Secretary of State. Allowing for three mailing days, cf.

O.C.G.A. § 9-11-6(e), Arias could have been expected to receive the Secretary of 

State’s letter—and thus notice of insufficient service—on April 4, 2013. And, the 

record reflects that that very day, Arias sent the summons and complaint to the 

Gwinnett County Sheriff’s Department for service on Dow’s Georgia agent. The 

Sheriff’s Department then served Dow’s registered agent on April 9, 2013—within 

the five-day period from its receipt of the summons and complaint for service. 

Because Arias immediately delivered the summons and complaint for service upon 

learning that her original service on Dow was insufficient, and then the process 

server accomplished proper service within the five-day safe-harbor period, Arias 

appears to have timely perfected service on Dow that relates back to the time of her 

filing her complaint within the limitations period.7

 

7

 Dow asserts, “Defendants do not concede that any of Plaintiff’s service attempts were 

made by authorized individuals, particularly given the numerous other flaws in her service 

attempts.” This conclusory and entirely unsupported argument cannot carry the day for Dow, in 

light of the fact that the record contains a notarized return of service on Dow, signed by a deputy 

Case: 13-14863 Date Filed: 01/20/2015 Page: 15 of 28 
16 

With regard to Cameron, Arias learned that her service on him was arguably 

insufficient when she received Defendants’ motion to dismiss, which they filed on 

April 24, 2013—a Wednesday. Allowing time for service under O.C.G.A. § 9-11-

6(e), Arias should have taken action to effect proper service by Monday, April 29, 

2013. See O.C.G.A. §§ 9-11-6(a); 1-3-1(d)(3) (when the last day of the period falls 

on a Saturday or Sunday, the next business day following becomes the last day of 

the period). 

The record reveals that is exactly what she did. On April 29, 2013, Arias 

sent the summons and complaint to the San Bernardino’s Sheriff’s Office for 

service on Cameron in California. Despite four attempts by the Sheriff’s Office to 

serve Cameron between May 4, 2013, and May 29, 2013—including the Sheriff’s 

Office’s leaving of a note on Cameron’s door instructing him to call, and 

Plaintiff’s communications in May with Cameron’s counsel about the service 

attempts—the Sheriff’s Office was unable to make service on Cameron. Arias 

then sought to effect service on Cameron in a third way since learning that 

Cameron contested Arias’s original service efforts: she hired a private process 

server and directed him to “stake out” Cameron’s residence until Cameron was 

personally served. It still took two days to accomplish service. Under these 

circumstances, it appears that Cameron may have been trying to evade service. 

 

sheriff with Gwinnett County. Georgia law authorizes deputy sheriffs in the county where the 

action is brought or where the defendant is found to serve process. See O.C.G.A. § 9-11-4(c)(1). 

Case: 13-14863 Date Filed: 01/20/2015 Page: 16 of 28 
17 

A defendant’s evasion of service bears on the determination of whether a 

plaintiff exercised diligence in attempting to accomplish service. In Feinour v. 

Ricker Co., 604 S.E.2d 588 (Ga. Ct. App. 2004), overruled on different grounds by 

Giles, 765 S.E.2d 413 at n.2, for example, the plaintiff filed her case on September 

28, 2000, and began service attempts on the defendant on October 2, 2000. Id. at 

590. Between October 2, 2000, and March 7, 2001, the defendant engaged in acts 

to evade service. Id. at 590-91. The plaintiff made several efforts to serve the 

defendant, first through one sheriff’s office, then another, then through a 

professional process server, and last, through a court-appointed process server, 

finally serving him on March 7, 2001, after the statute of limitations had expired. 

Id. at 591. Although the trial court granted the defendant’s motion for summary 

judgment based on untimely service, the appellate court reversed, concluding that 

where there was “evidence that [the plaintiff’s] efforts to serve [the defendant] 

were continuous and that she exercised the greatest possible diligence in light of 

[the defendant’s] obvious and continued attempts to evade service,” summary 

judgment for untimely service was improper. Id. at 591-92. 

This case is substantially similar to Feinour. While the Feinour plaintiff 

attempted service in four different ways over a five-month period, Arias tried three 

different ways to obtain service on Cameron over a 27-day period. The first 

method—through the San Bernardino Sheriff’s Office—involved four separate 

Case: 13-14863 Date Filed: 01/20/2015 Page: 17 of 28 
18 

attempts, and, with respect to the third method, Arias instructed the process server 

to effectively remain at Cameron’s house until service was accomplished. These 

efforts were comparably continuous and diligent to those of the Feinour plaintiff. 

As a result, when service was finally made on Cameron on May 31, 2013, it should 

have related back to the filing of the complaint before the expiration of the statute 

of limitations. Thus, Defendants’ statute-of-limitations defense appears to lack 

merit. 

B. Precedent 

But even if we very charitably described Defendants’ statute-of-limitations 

defense as potentially viable—a description that we do not endorse, the district 

court still did not abuse its discretion in voluntarily dismissing the case without 

prejudice because our precedent allowed it to do so. McCants v. Ford Motor Co., 

Inc., 781 F.2d 855 (11th Cir. 1986), decided nearly thirty years ago, drives the 

outcome of this issue. 

In McCants, we held that, under the facts of the case, the loss of a statute-oflimitations defense alone did not necessarily constitute per se legal prejudice 

sufficient to bar a dismissal without prejudice under Rule 41. Id. at 859. The 

plaintiff in McCants filed a wrongful-death action under Mississippi productsliability law in an Alabama federal court, based on a jeep accident that occurred in 

Mississippi. Id. at 856. When the plaintiff originally filed suit, she did so within 

Case: 13-14863 Date Filed: 01/20/2015 Page: 18 of 28 
19 

the limitations period, but she sued the wrong party, A.M. General, believing it to 

be the manufacturer of the jeep. Id. When she discovered the error, the plaintiff 

sought leave to amend her complaint to add Ford as a defendant, since it was the 

actual manufacturer of the jeep. Id. Rather than granting the plaintiff leave to 

amend the complaint, and after the one-year statute of limitations had run under 

Alabama law, the district court dismissed the action without prejudice. Id. Shortly 

thereafter, the plaintiff filed a second suit, this time naming Ford as a defendant. 

Id. 

Ford did not plead the statute of limitations in its answer but raised it in an 

amended answer about eight months after the initiation of the suit and a month 

before it filed its summary-judgment motion. Id. at 857. The district court denied 

the motion for summary judgment and, the following day, granted the plaintiff’s 

motion for dismissal without prejudice. Id. The dismissal without prejudice 

provided the plaintiff with the opportunity to refile the action in Mississippi, which 

had a longer limitations period. 

On appeal, Ford argued, among other things, that it had suffered legal 

prejudice when the case was dismissed without prejudice because it had lost its 

statute-of-limitations defense. Id. Ford further contended that the district court 

had abused its discretion in allowing the dismissal because it had failed to 

Case: 13-14863 Date Filed: 01/20/2015 Page: 19 of 28 
20 

acknowledge the importance of the loss of Ford’s limitation defense when the 

court balanced the equities of the case. Id. 

We upheld the district court’s granting of the plaintiff’s motion to dismiss, 

stating, “[T]he likelihood that a dismissal without prejudice will deny the 

defendant a statute of limitations defense does not constitute plain legal prejudice 

and hence should not alone preclude such a dismissal.” Id. at 858. We found 

support for this view in our precedent—namely, Durham v. Florida East Coast 

Railway Co., 385 F.2d 366. Id. We also noted that “no evidence in the record 

[suggested] that [McCants] or her counsel acted in bad faith in filing this action in 

Alabama or in filing it more than one year after the accident occurred.” Id. at 859. 

Under the circumstances, we concluded that Ford could not be said to have 

suffered “any plain legal prejudice other than the prospect of a second lawsuit on 

the same set of facts.” Id. Consequently, we determined that the district court did 

not abuse its discretion in allowing the dismissal without prejudice because the loss 

of a valid statute-of-limitations defense did not alone necessarily constitute a bar to 

dismissal without prejudice. Id.

McCants does not require a district court to find a lack of legal prejudice 

every time a defendant is potentially stripped of a statute-of-limitations defense. 

Rather, McCants and its progeny hold only that the loss of a statute-of-limitations 

defense alone does not amount to per se prejudice requiring denial of a voluntary 

Case: 13-14863 Date Filed: 01/20/2015 Page: 20 of 28 
21 

dismissal without prejudice. A district court must look to the particular facts of the 

case, including, among others, whether the plaintiff’s counsel has acted in bad 

faith, and “weigh the relevant equities and do justice between the parties” when 

evaluating a motion for a voluntary dismissal under Rule 41(a)(2). McCants, 781 

F.2d at 857; Goodwin v. Reynolds, 757 F.3d 1216, 1219 (11th Cir. 2014). Nor is it 

a “bar to a voluntary dismissal that the plaintiff may obtain some tactical advantage 

over the defendant in future litigation.” Goodwin, 757 F.3d at 1219 (citing 

McCants, 781 F.2d at 856-57). 

 Here, based on our review of the underlying facts, we conclude that the 

district court acted well within its discretion when it granted Arias’s motion for 

voluntary dismissal. First, the parties here do not dispute that Arias filed her 

lawsuit in Georgia state court before the two-year statute of limitations ran. 

Second, as explained above, Arias acted diligently in attempting to serve Cameron 

and Dow with the summons and complaint. Third, none of the facts of this case 

demonstrate bad faith on the part of Arias’s counsel, a factor that should be 

examined when considering a motion for voluntary dismissal without prejudice. 

Fourth, Defendants’ claimed statute-of-limitations defense is weak, at best. And, 

finally, the only reason that Defendants even arguably have a statute-of-limitations 

defense is because they removed the case to federal court. Had the case stayed in 

Georgia court, where Arias chose to file it, there would have been no question that 

Case: 13-14863 Date Filed: 01/20/2015 Page: 21 of 28 
22 

she would have been able to voluntarily dismiss the case and take advantage of 

Georgia’s six-month refiling provision. So Defendants effectively “created” the 

very statute-of-limitations defense that they now complain that they have been 

“stripped” of—a defense that did not even arguably exist until they removed the 

case to federal court. 

Moreover, although Defendants suggest that Arias should not be able to 

avoid the entry of summary judgment by voluntarily dismissing her action, for the 

reasons that we have previously discussed, it is surely not certain that summary 

judgment was appropriate. And, even if summary judgment were likely, this 

circuit has declined to adopt a bright-line rule precluding a district court from 

granting a Rule 41(a)(2) voluntary dismissal without prejudice when a motion for 

summary judgment is pending. See Pontenberg, 252 F.3d at 1258. As we have 

explained, “the mere attempt to avoid an adverse summary judgment ruling in and 

of itself, particularly where there is no evidence of bad faith, does not constitute 

plain legal prejudice.” Id. The district court’s attachment of conditions to the 

dismissal—requiring Arias to pay attorneys’ fees and costs incurred in this 

litigation if she refiles—further weighs in favor of affirming the district court’s 

voluntary dismissal of the case without prejudice. 

Case: 13-14863 Date Filed: 01/20/2015 Page: 22 of 28 
23 

Nor, as Defendants urge, is McCants inconsistent with controlling precedent 

in this Circuit.8

 Defendants suggest that McCants conflicts with LeCompte v. Mr. 

Chip, Inc., 528 F.2d 601 (5th Cir. 1976), and Exxon Corp. v. Maryland Casualty 

Co., 599 F.2d 659 (5th Cir. 1979). We disagree. 

Neither Exxon nor LeCompte considers or addresses the specific question of 

whether the potential loss of a defense upon voluntary dismissal without prejudice 

alone constitutes per se “prejudice” to a defendant, requiring denial of a motion for 

voluntary dismissal. Rather, these cases use the term “prejudice” in a more general 

sense and do not involve the potential loss of a defense upon voluntary dismissal. 

In fact, in Exxon, our predecessor court did not even consider a motion for 

permissive voluntary dismissal under Rule 41(a)(2). Instead, that case dealt with 

dismissal as of right under Rule 41(a)(1). And, to the extent that the Court 

discussed prejudice in LeCompte, it relied on Durham v. Florida East Coast 

Railway Co., 385 F.2d 366 (5th Cir. 1967). See LeCompte, 528 F.2d at 604. 

Durham—a case that predates both Exxon and LeCompte—is entirely 

consistent with McCants. In Durham, the plaintiff sued his employer for failure to 

 

8

 When circuit authority is in conflict, a panel should look to the line of authority 

containing the earliest case because a decision of a prior panel cannot be overturned by a later 

panel. Walker v. Mortham, 158 F.3d 1177, 1188-89 (11th Cir. 1998) (citing Johnson v. City of 

Fort Lauderdale, 126 F.3d 1372, 1380 n.10 (11th Cir. 1997); Robinson v. Tanner, 798 F.2d 

1378, 1383 (11th Cir. 1986) (per curiam); see also Bonner, 661 F.2d at 1209 (holding that 

decisions of prior panels are binding on subsequent panels and can be overturned by the court 

sitting en banc only)). 

Case: 13-14863 Date Filed: 01/20/2015 Page: 23 of 28 
24 

provide a safe workplace. Id. at 367. The defendant pled contributory negligence 

as an affirmative defense. Id. When the matter was called for trial, the plaintiff 

contended that he had discovered new evidence and moved for leave to amend the 

complaint to add a new claim under the Federal Safety Appliance Act, an act under 

which the plaintiff may recover without regard to any contributory negligence. Id. 

The district court denied the motion for leave to amend, prompting the plaintiff to 

move to voluntarily dismiss the suit without prejudice. Id. The trial court denied 

the motion and called the case for trial. Id. When counsel announced that he could 

not proceed with the trial of the case, the district court dismissed the action with 

prejudice. Id. The plaintiff then appealed. 

On appeal, the former Fifth Circuit emphasized that dismissing actions with 

prejudice was the most severe sanction and should be imposed only when a clear 

record of delay or contumacious conduct by the plaintiff exists. Id. at 368 (citation 

omitted). Because those circumstances did not exist in Durham, the Court opined 

that the “crucial question” in determining whether voluntary dismissal should have 

been granted was whether the defendant would lose any substantial right by the 

dismissal without prejudice requested by the plaintiff. Id. As the Court explained, 

“[D]ismissal should be allowed unless the defendant will suffer some plain legal 

prejudice other than the mere prospect of a second law suit. It is no bar to 

dismissal that plaintiff may obtain some tactical advantage thereby.” Id. (citation 

Case: 13-14863 Date Filed: 01/20/2015 Page: 24 of 28 
25 

and quotation marks omitted). Although a voluntary dismissal would have resulted 

in the defendant’s loss of its contributory-negligence defense, the Court concluded 

that the record did not disclose any prejudice to the defendant upon the granting of 

a voluntary dismissal, other than the annoyance of a second litigation on the same 

subject. Id. at 369. So the Court reversed the district court’s dismissal with 

prejudice and remanded the case for dismissal of the complaint without prejudice. 

Id. 

Durham supports our subsequent decision in McCants, where we concluded 

that the loss of a statute-of-limitations defense alone does not constitute per se 

prejudice requiring denial of a motion for voluntary dismissal. Indeed, our 

decision in McCants cited to and relied upon Durham. In short, McCants does not 

violate our prior-precedent rule, and we are bound to follow it. 

We also respectfully reject Defendants’ contention that McCants should be 

limited to its facts. Defendants suggest that McCants should apply to only those 

situations where a defendant delays in raising the affirmative defense that it hopes 

to preserve against a voluntary dismissal. Because Defendants here raised their 

statute-of-limitations defense in a motion to dismiss one week following their 

removal of the case to federal court, they assert that McCants should not apply. 

But the way in which we framed the issue in McCants reveals that the timing 

of the defendant’s assertion of the defense did not drive the result in the case. As 

Case: 13-14863 Date Filed: 01/20/2015 Page: 25 of 28 
26 

we described it, the issue in McCants was simply “whether it constitutes an abuse 

of discretion for a district court to dismiss without prejudice an action that is timebarred as brought, where the purpose or effect of such dismissal is to allow the 

plaintiff to refile the action in a place or manner in which it is not similarly 

barred.” 781 F.2d at 858. Nor did we limit our holding that “the loss of a valid 

statute of limitations defense [does not] constitute a bar to a dismissal without 

prejudice,” id. at 859, to circumstances where defendants delay in raising their 

statute-of-limitations defense. And we decline to so restrict McCants today. 

We recognize, as Defendants point out, that other circuits have found clear 

legal prejudice to exist when a Rule 41(a)(2) dismissal is granted in the face of a 

valid statute-of-limitations defense. See Wojtas v. Capital Guardian Trust Co., 

477 F.3d 924, 927-28 (7th Cir. 2007); Grover ex rel. Grover v. Eli Lilly & Co., 33 

F.3d 716, 719 (6th Cir. 1994); Metro. Fed. Bank of Iowa F.S.B. v. W. R. Grace & 

Co., 999 F.2d 1257, 1262 (8th Cir. 1993); Phillips v. Illinois Cent. Gulf R.R., 874 

F.2d 984, 987 (5th Cir.1989). And we acknowledge that both the Fifth and Eighth 

Circuits have expressly announced their disagreement with our decision in 

McCants. See Phillips, 874 F.2d at 987; Metro. Fed. Bank of Iowa, 999 F.2d at 

1263. 

But we are bound by the prior-precedent rule to follow McCants. See Smith 

v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (citation and quotation marks 

Case: 13-14863 Date Filed: 01/20/2015 Page: 26 of 28 
27 

omitted) (“Under our prior precedent rule, a panel cannot overrule a prior one’s 

holding even though convinced it is wrong.”). So even if we disagreed with it, we 

would nonetheless be required to be faithful to it. See id. 

We do not disagree with McCants, though. Rule 41(a)(2) contemplates that 

the district court will weigh the equities in determining how to rule on a motion for 

voluntary dismissal. The equities of this case—including the dubious merit of 

Defendants’ statute-of-limitations defense, the consistent diligence of Arias, the 

apparent attempts by Cameron to evade service, and the fact that Defendants could 

not even arguably invoke their statute-of-limitations defense had they not removed 

the case from Arias’s chosen forum court in the first place—provide a good 

example of why a per se rule prohibiting district courts from allowing dismissals 

without prejudice any time that a statute-of-limitations defense might possibly be 

lost could significantly undermine the district court’s ability to balance the equities 

in ruling on a motion for voluntary dismissal under Rule 41(a)(2). 

The fact that McCants does not render loss of a statute-of-limitations defense 

per se prejudice does not mean that a party that could suffer the loss of such a 

defense upon a voluntary dismissal without prejudice will necessarily be at the 

losing end of a motion for voluntary dismissal without prejudice. Rather, McCants

allows for a motion for voluntary dismissal without prejudice to be denied if a 

statute-of-limitations defense could be lost, provided that consideration of all of the 

Case: 13-14863 Date Filed: 01/20/2015 Page: 27 of 28 
28 

equities in the case warrant such a conclusion. We think that this is the correct 

formulation of what Rule 41(a)(2) requires. 

Finally, based on all of these considerations, we conclude that the district 

court did not abuse its discretion when it granted Arias’s motion for voluntary 

dismissal without prejudice under Rule 41(a)(2). 

V.

In sum, we conclude that it is unlikely that Defendants had a meritorious 

statute-of-limitations defense in the first place. But even if they did, in view of the 

equities, the district court did not abuse its discretion in granting Arias’s motion for 

voluntary dismissal without prejudice pursuant to Rule 41(a)(2). We therefore 

affirm the order of the district court. 

AFFIRMED. 

Case: 13-14863 Date Filed: 01/20/2015 Page: 28 of 28