IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

SALTWATER SOL HOSPITALITY, )

LLC d/b/a BUCCANEER INN, )

)

Plaintiff, )

)

v. ) Case No.: 4:19-cv-00513-MW-CAS

)

WESTCHESTER SURPLUS LINES )

INSURANCE COMPANY, )

)

Defendant. )

RESPONSE OF WESTCHESTER SURPLUS LINES INSURANCE 

COMPANY IN OPPOSITION TO PLAINTIFF’S MOTION FOR 

DISMISSAL WITHOUT PREJUDICE

Defendant Westchester Surplus Lines Insurance Company (“Westchester”), 

by and through its undersigned counsel, hereby files this response in opposition to 

plaintiff’s motion for dismissal without prejudice, respectfully showing the Court as 

follows:

I. OVERVIEW

In its Order of May 7, 2020, this Court ordered Saltwater to “furnish discovery 

in accordance with this Court’s March 11 Order, ECF No. 29, on or before May 22, 

2020.” [Doc. 43, p. 7 of 8]. This Court stated that, if Saltwater failed to comply with 

this order, this Court might dismiss the action, and in any event, this Court would 

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award sanctions against Saltwater for its past conduct. As grounds for this Order, 

this Court found as follows:

Plaintiff has repeatedly disregarded this Court’s orders, including an order 

compelling discovery, and has, on one occasion, falsely misrepresented 

compliance. Some sort of sanction, therefore, is plainly in order. Nevertheless, 

dismissal of this action would be unjust because a less drastic sanction would 

ensure compliance with the March 11 Order. This Court, therefore, stays 

furthers proceedings for fifteen (15) to allow Plaintiff to fully comply with the 

March 11 Order. If Plaintiff fails to comply with the March 11 Order by the 

end of the stay, this Court may dismiss this action. Further, Plaintiff and its 

attorneys are directed to pay reasonable expenses, including attorneys’ fees, 

that Defendant has incurred in bringing this motion. The amount of expenses 

will be determined by this Court at the end of this lawsuit.

Id., p. 7 of 8. Saltwater, instead of complying with this Court’s order to furnish 

discovery on or before May 22, 2020, moved on May 14, 2020 to dismiss this action 

without prejudice. [Doc. 51]. 

Westchester objects to the dismissal without prejudice sought by Saltwater. 

Westchester requests that this Court dismiss the action with prejudice due to 

Saltwater’s failure to fully comply with this Court’s order to furnish discovery, 

which amounts also to a failure to prosecute this action. In the alternative, if this 

Court finds the sanction of dismissal with prejudice to be inappropriate and decides 

to grant Saltwater’s motion, Westchester requests that this Court condition dismissal 

without prejudice upon the payment by Saltwater of all attorney fees and costs 

incurred by Westchester in defending this matter and require any subsequent suit be 

filed in this Court.

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II. ARGUMENT AND CITATION OF AUTHORITY

Federal Rule of Civil Procedure 41(a)(2) states that “an action may be 

dismissed at the plaintiff's request only by court order, on terms that the court 

considers proper. ... Unless the order states otherwise, a dismissal under this 

paragraph (2) is without prejudice.” 

A plaintiff does not enjoy a right to a dismissal without prejudice. Fisher v. 

P.R. Marine Mgmt., Inc., 940 F.2d 1502 (11th Cir. 1991). The district court, when 

exercising its discretion to allow a dismissal without prejudice, "should keep in mind 

the interests of the defendant, for Rule 41(a)(2) exists chiefly for protection of the 

defendants." Id. at 1503. The district court must “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.” Pontenberg v. Boston Sci. 

Corp., 252 F.3d 1253, 1255-56 (11th Cir. 2001). 

The decision before this Honorable Court is similar to the one in RussellBrown v. Jerry, No. 1:09-cv-00257-MP-AK, 270 F.R.D. 654, 660, 2010 U.S. Dist. 

LEXIS 92870, (N.D. Fla. Aug. 19, 2010), where the court held:

The Court is now faced with two issues: First, should the Court allow 

the Plaintiff to voluntarily dismiss the instant case, 1:09-cv-00257, 

without prejudice? Second, if the Court allows the dismissal without 

prejudice, what are the "terms [of dismissal without prejudice] that the 

court considers proper" pursuant to Fed. R. Civ. P. 41(a)(2)?

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A. Saltwater’s Request For Dismissal Without Prejudice Should Be Denied

This Court should deny Saltwater’s motion to dismiss the complaint without 

prejudice, and instead, this Court should dismiss the complaint with prejudice under 

Fed. R. Civ. P. 42(b). 

In deciding whether to allow a case to be dismissed without prejudice over the 

defendant’s objection, “[t]he crucial question to be determined is, [w]ould the 

defendant lose any substantial right by the dismissal.” Pontenberg, 252 F.3d at 

1255-56; see also Mediavation, Inc. v. Rodgers, No. 6:08-cv-1903_orl-19KRS, 

2009 U.S. Dist. LEXIS 76623 (M.D. Fla. Aug. 27, 2009), holding that dismissal with 

prejudice should be granted unless dismissal “will inflict clear legal prejudice on a 

defendant.” Ultimately, ‘[t]he court's task is to 'weigh the relevant equities and do 

justice between the parties.'" Goodwin v. Reynolds, 757 F.3d 1216, 1219 (11th Cir. 

2014).

The court in Mediavation, which permitted a dismissal without prejudice, 

found that “this case has proceeded with little delay since its inception,” the only 

extension requested was by the defendant, and “both parties here have dutifully 

complied with each other's limited discovery requests.” 2009 U.S. Dist. LEXIS 

76623, at * 6-7. The court specifically distinguished the circumstances before it from 

those in McBride v. JLG Indus., Inc., 189 F. App'x 876, 878 (11th Cir. 2006), and

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Mosley v. JLG Indus., Inc., 189 F. App'x 874, 876 (11th Cir. 2006), where the courts 

denied the plaintiffs’ motions to dismiss without prejudice. In Mediavation, the 

court found: “[I]n McBride and Mosley, voluntary dismissal was inappropriate not 

merely due to the pending motion for summary judgment, but principally due to "the 

time that had passed since the case was filed, the many motions filed, . . . the 

discovery produced, . . . [the] considerable time ... expended and expenses incurred, 

[and] the many extensions granted to Plaintiff for naught.” Mediavation, at * 6-7

(citing McBride at 4). 

Circumstances more prejudicial to Westchester than those that were present 

in McBride and Mosley are present in this action and they weigh against this Court 

granting Saltwater’s motion to dismiss without prejudice. Westchester has spent 

considerable time and expense in filing multiple motions due to the Saltwater’s 

failure to abide by the rules of procedure and the orders of this Court. This mirrors 

the fact patterns set forth in McBride, supra, and Mosley, supra, not the dutiful 

compliance of the plaintiff noted in Mediavation. 

In Opacmare USA, LLC v. Lazzara Custom Yachts, LLC, No. 8:16-cv-3288-

T-33JSS, 2017 U.S. Dis. LEXIS 180762, 2017 WL 4959436, (M.D. Fla. November 

1, 2017), the court used the following four factor test to determine whether to grant 

a motion for dismissal without prejudice:

In determining whether a defendant will suffer clear legal prejudice, 

‘the Court should consider such factors as the [1] defendant's effort and 

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expense of preparation for trial, [2] excessive delay and lack of 

diligence . . . in prosecuting the action, [3] insufficient explanation for 

. . . a dismissal, and [4] whether a motion for summary judgment has 

been filed by the defendant.’

Id., at *4. A dismissal without prejudice of Saltwater’s complaint against 

Westchester is not appropriate under the totality of the circumstances and equities. 

The first factor set forth in Opacmare is the “defendant's effort and expense of 

preparation for trial.” Westchester has incurred significant time and resources in 

litigating this matter. It has been forced to incur the costs of additional discovery due 

to Saltwater’s failure to provide Rule 26 initial disclosures and documents, and it 

has been forced to file, not one, but two motions to compel and a motion for 

sanctions due to Saltwater’s continued failure to comply with the rules of procedure 

and this Court’s orders. 

The second factor, “excessive delay and lack of diligence . . . in prosecuting 

the action,” weighs heavily against Saltwater. This Court already has found that 

Westchester would be prejudiced by the extension of disclosure deadlines because 

Saltwater “could have made the disclosures if it had been diligent.” See Doc. 52, 

page 4. This Court further found that “Plaintiff was not diligent in conducting 

discovery.” Id. at 6. 

In examining the third factor, “insufficient explanation for . . . a dismissal,” 

the court in Opacmare found that the plaintiff had proffered a reasonable explanation 

for its request to voluntarily dismiss some, but not all, of the counts against the 

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defendant. The stated purpose “to streamline the issues to be adjudicated for the sake 

of judicial economy and the benefit of both parties by avoiding additional litigation 

costs” was a “reasonable explanation.” Opacmare at 5-6. In contrast, Saltwater has 

not made any attempt whatsoever to explain the reasoning behind its request for a 

dismissal of the sole count against Westchester. Saltwater cannot satisfy that prong 

of the test. 

Westchester concedes that this matter does not satisfy the final factor in a 

literal sense. No motion for summary judgment has been filed. However, this Court’s 

collection of rulings against Saltwater, which granted Westchester’s motion to 

compel and imposed sanctions [Doc. 29], imposed additional sanctions [Doc. 43], 

and most recently denied Saltwater the ability to serve initial and expert disclosures

[Doc. 52], provides an advantage to Westchester that will be lost if dismissal without 

prejudice is allowed. Saltwater’s motion to dismiss without prejudice seeks to avoid 

the negative outcomes brought about through its own acts and omissions. This

satisfies the fourth and final factor in Opacmare.

The court in Opacmare mentioned a fifth factor – “[a]nother relevant 

consideration is whether the plaintiff's counsel has acted in bad faith.” Id., at *4-5 

(citing Goodwin v. Reynolds, 757 F.3d 1216, 1219 (11th Cir. 2014)). This Court 

already has found that Saltwater’s conduct amounted to bad faith. In denying 

Saltwater’s motion for leave to file initial and expert disclosures, this Court used the 

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multi-factor test set forth in Pioneer Inv. Servs. v. Brunswick Assoc. Ltd. P’ship, 

507 U.S. 380, 388 (1993). This test included “whether the movant acted in good 

faith.” Id. as quoted in [Doc. 52]. Examples of Saltwater’s bad faith include counsel 

“who was careless in handling the scheduling and monitoring the case” [Doc. 52, 

page 4], raising the ongoing COVID-19 pandemic as a “red herring” argument for 

inaction during the months of November 2019 and January 2020 [Doc. 52, page 5], 

“falsely misrepresented compliance” [Doc. 43, page 7], service of “woefully 

inadequate” discovery responses [Doc. 43, page 3], which “appear to be a lastminute attempt to comply with this Court’s March 11 order” [Doc. 43, page 4], and 

that “Plaintiff has failed to comply with these Court’s orders on multiple occasions, 

failed to provide adequate discovery in a timely fashion in violation of the March 11 

Order, and misled this Court.” [Doc. 43, page 4]. Saltwater again has misled this 

Court by its latest filing of a notice of compliance. [Doc. 53]. Westchester will 

address this issue fully in its response to the notice of compliance.

Saltwater’s decision to move to dismiss this action without prejudice rather 

than fully comply with this Court’s May 7 order to comply with its March 11 order 

to furnish the discovery required by the rules of civil procedure amounts to the 

utmost in bad faith. Such conduct provides a further indication, if any was needed,

that Saltwater intends never to fully furnish the requested discovery or to abide by 

the rules of procedure or the lawful orders of this Court during the litigation of this 

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matter. This conduct justifies dismissal of this action with prejudice. Federal Rule

of Civil Procedure 42(b), which governs involuntary dismissal, states as follows: 

If the plaintiff fails to prosecute or to comply with these rules or a court order, 

a defendant may move to dismiss the action or any claim against it. Unless the 

dismissal order states otherwise, a dismissal under this subdivision (b) and 

any dismissal not under this rule—except one for lack of jurisdiction, 

improper venue, or failure to join a party under Rule 19—operates as an 

adjudication on the merits.

Saltwater’s motion to dismiss this action without prejudice, rather than fully comply 

with this Court’s orders regarding discovery, amounts to a failure to prosecute this 

action, as well as a failure to comply with a court order. Accordingly, this action 

should be dismissed with prejudice under Rule 42(b). 

B. In The Alternative, This Court Should Condition A Voluntary 

Dismissal Upon The Payment Of All Of Westchester’s Attorney 

Fees And Expenses

Fed. R. Civ. P. 41(a)(2) states in relevant part as follows: “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.” The court in Russell-Brown, supra,

held that, if dismissal without prejudice is appropriate, the analysis then turns to 

“what are the ‘terms [of dismissal without prejudice] that the court considers proper’

pursuant to Fed. R. Civ. P. 41(a)(2)?” Russell-Brown at 660.

Only the full payment of all of Westchester’s attorney’s fees and expenses 

incurred in the defense of this litigation can begin to mitigate the prejudice 

Westchester would face upon the granting of a dismissal without prejudice at this 

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stage of the litigation. “An assessment of attorney's fees and costs is intended to 

protect Defendant from ‘the unfairness of duplicative litigation.’" Arguellas 

Holding, LLC v. City of Umatilla, No. 5:09-cv-383-Oc-10DAB, 2011 U.S. Dist. 

LEXIS 166312*, 2011 WL13319352, (M.D. Fla. Feb. 7, 2011) (quoting Versa 

Prods., Inc. v. Home Depot, USA, Inc., 387 F.3d 1325, 1328 (11th Cir. 2004)).

In Ortega Trujillo v. Banco Central Del Ecuador, 379 F.3d 1298, 1301 (11th

Cir. 2004), the Eleventh Circuit upheld the trial court’s requirement that the plaintiff 

pay all of the defendant’s fees and costs as a condition of dismissal without 

prejudice. The defendant in that case presented evidence of approximately 

$700,000.00 in fees and costs. Id. at 1300. The trial court entered “an enforceable 

judgment on which defendant can execute.” Moore v. Shands Jacksonville Med. 

Ctr., Inc., No. 3:09-cv-298-J-34PDB, 2014 U.S. Dist. LEXIS 83637*, 201 WL 

2801202, (M.D. Fla. June 19, 2014) (discussing Ortega Trujillo at 1300). The 

Eleventh Circuit determined that “[t]here being only an assessment of attorney’s fees 

and costs as the condition to this voluntary dismissal, we see no legal prejudice from 

the dismissal.” Id. at 1302.

Likewise, the former Fifth Circuit1 found that a requirement that the plaintiff 

in Yoffe v. Keller Industries, Inc., 580 F.2d 126, 128 (5th Cir. 1978), pay $44,523.20 

1 In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit 

adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to 

the close of business on 30 September 1981.

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in fees and costs as a condition of a dismissal without prejudice did “not amount to 

legal prejudice.” Id. at 131. The Eleventh Circuit, in Versa, supra, pointed out that 

“in 2004 dollars [the fee award in Yoffe] would be a six-figure sum.” Versa at 1328. 

If Saltwater intends to refile this action, the Court should order all fees and expenses 

incurred by Westchester in defending this action be paid in full by Saltwater as a 

condition of the dismissal without prejudice.

C. In The Alternative, Any Refiling Of This Case Should Be 

Conditioned Upon Saltwater’s Payment Of All Of Westchester’s 

Attorney Fees And Expenses

This Court has discretion to impose conditions “less severe than the conditions 

of immediate payment in Ortega Trujillo and Yoffe.” Versa, supra, at ___. In Versa,

the Eleventh Circuit upheld the trial court’s condition that the “first condition – that 

Versa, upon refiling, pay the fees and costs incurred by [Defendant] in defending 

this case – is plainly intended to protect [Defendant] from unfairness of duplicative 

litigation.” Id. Similarly, in Opacmare, the court required that if the plaintiff “files 

a future action based on or including the claims of the Amended Complaint,” it must 

“pay all attorneys’ fees and costs incurred by [Defendant] from its defense of the 

claim in the Complaint and Amended Complaint.” Opacmare at 10. In Arjuelles,

supra, the court ordered that if the plaintiff “ever refiles any action against Defendant

upon these or substantially similar facts in any court, Plaintiff will be required to pay 

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the costs and attorney’s fees Defendant incurred in defending this action.” Arguelles

at 5.

This Court therefore has the discretion to order that, if Saltwater ever refiles 

an action against Westchester upon the same or similar facts as those that are present 

in this action, it first must pay all of the costs, expenses and attorneys’ fees incurred 

by Westchester in defending this action.

D. In The Event That Saltwater Refiles This Action, It Should Be 

Required To Do So Only In The United States District Court For 

The Northern District Of Florida

This Court also has the authority to order Saltwater to limit to the Northern 

District of Florida any subsequent refiling of a complaint against Westchester based 

on the facts alleged in the complaint in this action. The former Fifth Circuit described 

the condition placed on the 41(a)(2) dismissal in LeCompte v. Mr. Chip, Inc., 528 

F.2d 601, 602 (5th Cir. 1976), as follows:

"The trial court granted the motion but appended several conditions to 

the dismissal at the behest of the defendants: (1) that any subsequent 

suit must be filed in the same court; (2) that plaintiff must show 

extraordinary circumstances to justify reopening the case; and (3) that 

plaintiff must make an affirmative demonstration to the court's 

satisfaction that a valid cause of action can be maintained against 

defendants." Emphasis added.

Based on the precedent set in LeCompte, as well as the Sixth Circuit case of Scholl 

v. Felmont Oil Corp., 327 F.2d 697, 699-700 (6th Cir. 1964), the Eleventh Circuit in 

Versa, supra, found that such a restriction “does not constitute legal prejudice to 

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[Plaintiff]. This venue restriction protects [Defendant] from the unfairness of having 

to relitigate the issue of the more convenient forum for this dispute, but the venue 

restriction maintains the right of [Plaintiff] to file a new complaint.” Versa at 1329.

E. This Court’s Sanctions Award Remains Outstanding

This Court’s order on Westchester’s motion for sanctions [Doc. 43, page 7-8] 

held that “Plaintiff and its attorneys shall pay Defendant its reasonable expenses 

incurred in bringing the instant motion in an amount to be determined by this Court 

at the end of this lawsuit.” Westchester has argued that all of its fees and costs should 

be paid by Saltwater as a condition of dismissal without prejudice. However, if the 

Court decides instead to condition the refiling upon the payment of fees and costs, 

Westchester requests that this Court enforce the order on Westchester’s motion for

sanctions, determine the appropriate amount Saltwater and its attorneys must pay to 

Westchester before relinquishing jurisdiction over this case, and enter a final 

judgment against Saltwater in that amount.

IV. CONCLUSION

Saltwater has not made any attempt to demonstrate a good faith purpose for 

its request to voluntarily dismiss this matter without prejudice. As this Court has 

determined time and time again, Saltwater and its attorneys have acted outside the 

bounds of all norms that should be expected in a case before the United States 

District Court. The case should therefore be dismissed with prejudice. 

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In the alternative, if the Court determines that it is necessary to grant a 

dismissal without prejudice, Westchester requests that the dismissal be contingent 

upon payment of all fees and costs incurred by Westchester or that the refiling of 

this cause be conditioned upon such payment of those fees and costs, and any refiled 

action must be refiled only in this Court.

LOCAL RULE 7.1(F) CERTIFICATE

I HEREBY CERTIFY that the instant motion and memorandum contains 

3,466 words. 

/s/ J. Richard Young 

J. RICHARD YOUNG

Fla. Bar No. 0563250 

Respectfully submitted this 29th day of May, 2020.

 

/s/ J. Richard Young 

J. RICHARD YOUNG

Florida Bar No. 0563250

MOZLEY, FINLAYSON & LOGGINS 

LLP

4767 New Broad Street

Orlando, Florida 32814

Tel: (407) 514-2765 Ext. 2317

Fax: (404) 250-9355

ryoung@mfllaw.com

-andWAYNE D. TAYLOR

Georgia Bar No. 701275

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Admitted in USDC NDFL

MICHELLE A. SHERMAN

Georgia Bar No. 835980

Admitted in USDC NDFL

MOZLEY, FINLAYSON & LOGGINS 

LLP

1050 Crown Pointe Parkway, Suite 1500

Atlanta, Georgia 30338

Tel: (404) 256-0700

Fax: (404) 250-9355 

wtaylor@mfllaw.com

msherman@mfllaw.com

Attorneys for Defendant Westchester 

Surplus Lines Insurance Company

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CERTIFICATE OF SERVICE

 I HEREBY CERTIFY that a copy of this document has been served on the 

29th day of May 2020 to the parties identified below (i) through the United States 

District Court, Northern District of Florida, CM/ECF system or (ii) by the alternative 

method specified above the party’s name.

Christopher Alexander Aguirre

Service@ilgpa.com

attorneyservice@ilgpa

/s/ J. Richard Young 

J. RICHARD YOUNG

Mozley, Finlayson & Loggins LLP

4767 New Broad Street

Orlando, FL 32814

407.514.2765

FL Bar: 0563250

RYoung@MFLLaw.com

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