Florida’s Middle District Denies Plaintiffs’ Motion for Voluntary Dismissal to Rectify Deficiencies

By Douglas M. Cohen

In Mulas v. Westchester Surplus Lines Ins. Co., No. 2:24-cv-534-SPC-DNF, 2025 U.S. Dist. LEXIS 253207 (M.D. Fla. Dec. 8, 2025), the Middle District denied the plaintiffs’ motion to voluntarily dismiss its breach of contract claim against the defendant for windstorm damage to a commercial property when faced with the defendant’s summary judgment motion based on the plaintiffs’ failure to submit an actual cash value (ACV) estimate. The plaintiffs submitted a claim to the defendant and alleged that the defendant did not pay the appropriate amount owed to them under the policy. After litigating the case for 20 months, the defendant moved for summary judgment, arguing that the plaintiffs could not collect replacement cost value (RCV) for their property damage because they had not undertaken any repairs or incurred any such costs. The defendant also argued that because the plaintiffs failed to submit any evidence contradicting the ACV payment the defendant already issued, there was no evidence to rebut the defendant’s ACV payment and the plaintiffs could not prove a breach of the policy.

Rather than respond to the motion for summary judgment, the plaintiffs asked the court to dismiss their case without prejudice so that they could rectify certain issues that formed the basis of the defendant’s motion for summary judgment and refile the case. The Middle District focused its analysis on Fed. R. Civ. P. 41(a)(2), which permits a plaintiff to voluntarily dismiss an action without prejudice only “by court order, on terms that the court considers proper.” When considering a Rule 41(a)(2) motion, courts within the Eleventh Circuit often consider the following: (1) the sufficiency of the plaintiff’s explanation for the need to dismiss the action; (2) the plaintiff’s diligence in bringing the motion and prosecuting the action; (3) the stage to which the suit has progressed, particularly whether the defendant has filed a summary judgment motion; (4) the defendant’s effort and expense in preparing for trial; and (5) the duplicative expense of relitigation.

In Mulas, the Middle District recognized that the plaintiffs moved for dismissal under Rule 41(a)(2) so they could have a “do-over”. The court found that the plaintiffs’ sole justification for the dismissal is that they are “in the process of obtaining corrected estimates and revised documentation” to rectify their estimate’s failure to account for depreciation. The court found that the plaintiffs implicitly conceded that they currently have no evidence of ACV to defend or rebut the defendant’s ACV payment. This concession revealed that their sole motivation for seeking dismissal without prejudice was to avoid an expected adverse ruling on the defendant’s motion for summary judgment. The court found this problematic. Further context made matters worse for the plaintiffs—the case had been pending for 20 months, and during that time the plaintiffs were found to be dilatory on discovery, even requiring the court to impose sanctions. The court found that the “real kicker” was that the plaintiffs should have known their estimate failed to account for ACV 18 months prior, when the defendant asserted this as its first affirmative defense. Since the plaintiffs were on notice of the very deficiencies that they want to rectify to avoid judgment since the onset of the case and had ample opportunity to do so, the court denied the plaintiffs’ motion noting that if granted it would subject the defendant to the inconvenience of repeated litigation where the very basis on which the defendant sought judgment would likely disappear in the future. Accordingly, the court denied the plaintiffs’ motion for voluntary dismissal, requiring the plaintiffs to respond to the defendant’s motion for summary judgment by a date certain.