United States District Court, E.D. North Carolina, Western Division
VERNIECEE WHITAKER AVENT, ESTATE OF LUCINDA ALSTON WHITAKER Plaintiffs,
STATE FARM FIRE AND CASUALTY CO., Defendant.
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs' motion to
dismiss without prejudice pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure [DE 46] and defendant's
response in opposition. [DE 47]. The matters have been fully
briefed and are ripe for ruling. For the reasons discussed
below, the motion to dismiss is granted without prejudice and
the complaint is dismissed.
case arises out of a fire on August 15, 2013 at a home
located at 707 Hammond Street in Rocky Mount, North Carolina.
Am. Compl [DE 19] 1-3 ¶¶ 1-3. Defendant insured the
home and plaintiffs claimed that defendant failed to fully
compensate them for the loss of dwelling, personal property,
and living expenses incurred. Id. at 3 ¶ 5.
After numerous motions relating to discovery, plaintiff
Avent's deposition was scheduled for June 6, 2017. When
she did not appear, defendant moved for sanctions and to
compel her to attend her deposition. On July 11, 2017,
plaintiff moved to withdraw her complaint. Defendant filed a
response in opposition to plaintiffs motion on August 1,
is proceeding pro se on behalf of herself and the
estate of her mother. Pro se litigants are
traditionally entitled to a certain amount of leniency from
the courts. Erickson v. Pardus, 551 U.S. 89 (2007)
("A document filed pro se is to be liberally
construed, and a. pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers." (internal
quotation marks omitted)). The relatively unsophisticated
framing of a motion does not, on its own, prevent it from
being successful. See, e.g., Davis v. South Carolina
Dept. of Corrections, 2007 WL 2156699 (D.S.C. 2007)
(treating pro se plaintiffs motion to
"strike" his case from the Court docket as a Rule
41(a)(2) motion to dismiss).
this Court will treat plaintiffs motion to dismiss without
prejudice as coming under Federal Rule of Civil Procedure
41(a)(2). This rule allows plaintiff to petition the Court
for a dismissal of her claims, without prejudice, without a
stipulation to the dismissal by the opposing party.
Fed.R.Civ.P. 41(a)(2). "The purpose of Rule 41(a)(2) is
freely to allow voluntary dismissals unless the parties will
be unfairly prejudiced." Patten v. N. Carolina
Dep't of Pub. Safety, 2016 WL 1595382 at *2 (E.D.
N.C. 2016) (quoting Andes v. Versant Corp., 788 F.2d
1033 (4th Cir. 1986). A plaintiffs motion under the rule
"should not be denied absent substantial prejudice to
the defendant." Andes v. Versant Corp, 788 F.2d
1033, 1036 (4th Cir. 1986)). Prejudice must be some harm
"other than the mere prospect of a second lawsuit."
Patten at *2.
response opposing plaintiffs motion, defendant indicates the
harm it would suffer would be plaintiffs "opportunity to
refile the action." Def. Mot. at 2 [DE 47]. Defendant
does not allege harm such that plaintiffs Rule 41(a)(2)
motion should be denied. Therefore, plaintiffs motion to
dismiss her claim without prejudice will be granted, and
defendant's motion opposing the dismissal will be denied.
As the claim is dismissed, defendant's motions for
sanctions and to compel plaintiff to attend her deposition
will also be denied.
the dismissal is without prejudice, meaning plaintiff, should
she so choose, could bring the lawsuit again, the Court
cautions that generally a plaintiff proceeding pro
se cannot litigate on behalf of another party. See
Myers v. Loudoun Cty. Pub. Sch, 418 F.3d 395, 400 (4th
Cir. 2005) ("The right to litigate for oneself,
however, does not create a coordinate right to litigate for
others") (emphasis in original). In the limited
setting where a pro se plaintiff is also the
administrator of an estate, and there are no other
beneficiaries or creditors, some circuits have permitted a
plaintiff to proceed on behalf of the estate as well.
See, e.g., Rodgers v. Lancaster Police & Fire
Dept., 819 F.3d 205, 211 (5th Cir. 2016); Bass v.
Leatherwood, 788 F.3d 228, 230-31 (6th Cir. 2015);
Guest v. Hansen, 603 F.3d 15, 19-21 (2d Cir. 2010).
The Fourth Circuit has yet to directly address whether a
plaintiff may do so. See Witherspoon v. Jeffords Agency,
Inc., 88 Fed.Appx. 659, 659 (4th Cir. 2014)
(unpublished) (remanding a case to determine "whether
there are other beneficiaries, and whether there are any
creditors involved."). Should plaintiff elect to take
advantage of the non-prejudicial nature of the dismissal,
plaintiff would need to clearly show that she can proceed.
foregoing reasons, plaintiffs' motion to dismiss without
prejudice [DE 46] is GRANTED and defendant's motion for
sanctions and other relief [DE 44] is DENIED. The Clerk is