1

The Court originally scheduled this matter for hearing. Upon review of the

parties’ papers, however, the Court finds that oral argument is not necessary. See E.D.

Mich. LR 7.1(e)(2).

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JULIE PALAZZOLO,

Plaintiff,

v. Case No. 09-10043

KULWINDER SINGH MANN, and

THE BUFFALO GROUP OF HONORABLE AVERN COHN

COMPANIES, INC.,

Defendants.

_____________________________/

MEMORANDUM AND ORDER

GRANTING PLAINTIFF’S MOTION TO DISMISS

AND DISMISSING CASE WITH PREJUDICE AND WITHOUT COSTS1

I.

This case is a tort case for damages resulting from injuries sustained in a motor

vehicle accident. Plaintiff Julie Palazzolo says she was injured when a vehicle owned

by defendant, the Buffalo Group of Companies, Inc., and driven by defendant Kulwinder

Singh Mann failed to maintain its lane and struck her while she was driving. Plaintiff is

suing defendants claiming negligence (count I) and asks for damages in excess of the

limitations allowable under the Michigan No-Fault Act (count II). As will be explained,

plaintiff is now proceeding pro se. 

Before the Court is plaintiff’s motion to dismiss. Defendants do not object to

dismissal; however, they argue that a dismissal should be with prejudice or if the

dismissal is without prejudice, that plaintiff be assessed costs. 
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For the reasons that follow, plaintiff’s motion will be granted and the case will be

dismissed with prejudice and without costs.

II. Background

On November 12, 2008, plaintiff filed her complaint in state court. Defendants

removed the case to federal court on the grounds of diversity of citizenship. 

The parties then engaged in discovery which included a dispute over a proposed

protective order seeking access to plaintiff’s medical records. The Court resolved the

dispute, which involved the issue of whether defense counsel are allowed to conduct ex

parte interviews of a plaintiff’s treating physicians, in favor of defendants and granted

their motion for a protective order. See Memorandum and Order filed March 19, 2009.

Thereafter, discovery proceeded uneventfully. On August 17, 2009, defendants

filed a motion for summary judgment to strike plaintiff’s excess wage loss claim (count II

of the complaint). As explained below, plaintiff has not filed a response to the motion.

On August 24, 2009, defendants filed a motion for summary judgment to strike

plaintiff’s head injury claim. This motion was resolved on August 26, 2009 by stipulation

(plaintiff agreed to dismiss the claim).

On September 1, 2009, plaintiff’s counsel filed a motion to withdraw, citing a

breakdown of the relationship. The Court granted the motion on September 23, 2009. 

The order provided that within 45 days plaintiff must have new counsel enter an

appearance or inform the Court that she will proceed pro se. Plaintiff did not obtain new

counsel. As such, plaintiff began proceeding pro se as of September 23, 2009.

On December 3, 2009, the Court entered an order requiring plaintiff to respond to

defendants’ motion for summary judgment regarding her excess wage loss claim. The

order directed plaintiff to file a response by January 15, 2009. Plaintiff did not do so. 
2

In light of plaintiff’s request for dismissal, it is not necessary for plaintiff to

respond to defendants’ motion or for the Court to wait for a response before entertaining

plaintiff’s motion.

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Instead, plaintiff wrote a letter to the Court requesting assistance. The Court, through

its case manager, responded by letter dated December 21, 2009, stating that plaintiff

must file a response to defendants’ motion by January 15, 2009 or the case could be

dismissed.

Meanwhile, on January 7, 2010, defendants filed a motion to dismiss on the

grounds that plaintiff has refused to comply with court orders to appear for an

independent medical examination. On January 15, 2010, the Court entered an order

requiring plaintiff to file a response to this motion by February 22, 2010.2

On January 21, 2010, plaintiff filed a letter in which she stated that she is willing

to “dismiss” the case and asks that it be “without any costs.” The Court construed the

letter as a motion to dismiss. As noted above, defendants filed a response, contending

that any dismissal should be with prejudice or if the dismissal is without prejudice,

plaintiff should pay costs.

III. Analysis

Under Rule 41, “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). Unless

the order states otherwise, a dismissal under Rule 41(a)(2) is without prejudice. Id. The

matter is well-defined by the Sixth Circuit:

Whether dismissal should be granted under the authority of Rule 41(a)(2) is

within the sound discretion of the district court. The primary purpose of the rule in

interposing the requirement of court approval is to protect the nonmovant from

unfair treatment. Generally, an abuse of discretion is found only where the
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defendant would suffer “plain legal prejudice” as a result of a dismissal without

prejudice, as opposed to facing the mere prospect of a second lawsuit.

In determining whether a defendant will suffer plain legal prejudice, a court

should consider such factors as the defendant's effort and expense of

preparation for trial, excessive delay and lack of diligence on the part of the

plaintiff in prosecuting the action, insufficient explanation for the need to take a

dismissal, and whether a motion for summary judgment has been filed by the

defendant. 

Grover ex rel. Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir.1994) (citations

omitted). The Sixth Circuit considers Grover to be a guide to determining if unfairness

exists, but the list is “not an exclusive or mandatory list.” Rosenthal v.

Bridgestone/Firestone, Inc., 217 Fed. Appx. 498, 502 (6th Cir. 2007).

Here, considering the Grover factors, a dismissal with prejudice and without

costs is appropriate. Defendants have actively litigated this case since late 2008. They

have filed three dispositive motions, the latest of which is based on plaintiff’s refusal to

submit to an independent medical exam. Clearly, defendants have expended a

significant amount of time and effort in defending the case. For her part, plaintiff has not

been diligent in pursuing the case. 

Accordingly, plaintiff’s motion is GRANTED. The case is DISMISSED WITH

PREJUDICE and WITHOUT COSTS.

SO ORDERED.

Dated: February 18, 2010 s/ Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to Julie Palazzolo,

30013 Hickory Drive, Flat Rock, MI 48134 and the attorneys of record on this date,

February 18, 2010, by electronic and/or ordinary mail.

 s/ Julie Owens 

Case Manager, (313) 234-5160