                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA


                                )
DENIS MITTAKARIN,               )
                                )
               Plaintiff,       )
                                ) Civil Action No. 11-0017(EGS)
          v.                    )
                                )
INFOTRAN SYSTEMS, INC., et al., )
                                )
               Defendants.      )
                                )

                         MEMORANDUM OPNION

     Pending before the Court is plaintiff Denis Mittakarin’s

motion to voluntarily dismiss all claims against defendants

InfoTran Systems, Inc. and Tien H. Tran, pursuant to Federal

Rule of Civil Procedure 41(a)(2).   In response, defendants state

that they do not oppose dismissal; however, defendants urge the

Court to condition any dismissal upon the reimbursement of their

attorneys’ fees and costs.   Upon consideration of the motion,

the response, the reply and surreply1 thereto, the applicable

law, and the entire record, and for the reasons stated below,

the Court hereby GRANTS plaintiff’s motion and declines to

1
     The Court notes that defendants filed a surreply without
leave of Court. See United States ex rel. Pogue v. Diabetes
Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d 270, 276 (D.D.C.
2002) (“A surreply may be filed only by leave of Court, and only
to address new matters raised in a reply, to which a party would
otherwise be unable to respond.”). The Court has, however,
reviewed defendants’ improperly filed surreply brief and found
it no more persuasive than defendants’ opposition brief, for the
reasons set forth in more detail below.
condition dismissal upon an award of attorneys’ fees and costs

to defendants.

I.   BACKGROUND

     Plaintiff Mittakarin is an information technology (“IT”)

service provider who specializes in performing IT work for the

United States Citizenship and Immigration Services (“USCIS”).

Compl. ¶ 8.   Defendant InfoTran had a subcontracting

relationship with an entity or entities who contracted to

perform IT work on behalf of USCIS.       See id. ¶ 13.    On April 20,

2009, plaintiff entered into an Independent Contractor Agreement

(“Agreement”) with InfoTran.   Id. ¶ 20.     The Agreement contained

a non-compete provision, which barred plaintiff from (a)

soliciting or accepting any employment with, or (b) performing

any services similar to those performed by plaintiff for

InfoTran for its customers or competitors.         See id. ¶ 22.

     Plaintiff alleges that, as of November 16, 2010, one of the

contracting entities, Computer Sciences Corporation (“CSC”),

terminated InfoTran from its subcontracting relationship to

perform work on behalf of USCIS.       Id. ¶ 26.   Between November 9,

2010 and the filing of his complaint in this action on January

4, 2011, plaintiff sent defendant Tran numerous emails

requesting that InfoTran release plaintiff from the non-compete

provision of the Agreement, but Tran refused.         See id. ¶¶ 29-30.

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Because CSC terminated InfoTran’s contract, plaintiff has not

been able to perform work on the USCIS project since November

16, 2010.     Id. ¶ 33.

        Plaintiff commenced this action on January 4, 2011, seeking

a declaratory judgment that the non-compete provision is invalid

(Count I), and alleging intentional interference with a business

expectancy (Count II), fraudulent misrepresentation (Count III),

and negligent misrepresentation (Count IV).    The next day,

plaintiff filed a motion for partial summary judgment on Count

I, arguing that because CSC had terminated defendant, the non-

compete provision was not necessary to protect InfoTran’s

business or goodwill and was therefore invalid as a matter of

law.     See generally Pl.’s Mot. for Partial Summ. J., Docket No.

4.   Defendants filed a counterclaim on January 19, 2011, seeking

a declaratory judgment that the non-compete provision is, in

fact, valid and enforceable.    Plaintiff then filed a motion for

summary judgment on defendants’ counterclaim on February 18,

2011.    By minute order dated August 25, 2011, the Court denied

both of plaintiff’s motions for summary judgment.     See Minute

Order (Aug. 25, 2011).    On September 30, 2011, plaintiff filed a

motion to voluntarily dismiss all claims against defendants

pursuant to Rule 41(a)(2), arguing that because the non-compete

provision will expire before the end of the discovery period,

                                   3
the dispute over the validity of the non-compete provision will

be rendered moot.   That motion is now ripe for determination by

the Court.

II.   LEGAL STANDARD

      Federal Rule of Civil Procedure 41(a)(2) provides:

      [A]n action may be dismissed at the plaintiff’s
      request only by court order, on terms that the court
      considers proper. If a defendant has pleaded a
      counterclaim before being served with the plaintiff’s
      motion to dismiss, the action may be dismissed over
      the defendant’s objection only if the counterclaim can
      remain pending for independent adjudication. Unless
      the order states otherwise, a dismissal under this
      paragraph (2) is without prejudice.

Fed. R. Civ. P. 41(a)(2).   A court applying Rule 41(a)(2) must

consider (1) whether the plaintiff seeks the motion for

voluntary dismissal in good faith, and (2) whether the dismissal

would cause the defendant “legal prejudice.”   In re Vitamins

Antitrust Litig., 198 F.R.D. 296, 304 (D.D.C. 2000).   In

determining whether a defendant would suffer legal prejudice by

a voluntary dismissal, the Court must consider four factors:

      (1) the defendants’ effort and expense in preparation
      for trial; (2) excessive delay or lack of diligence on
      the plaintiffs’ part in prosecuting the action; (3)
      the adequacy of the plaintiffs’ explanation for
      voluntary dismissal; and (4) the stage of the
      litigation at the time the motion to dismiss is made.

Fed. Hous. Fin. Agency v. Raines (In re Fannie Mae Secs.,

Derivative Litig.), 725 F. Supp. 2d 169, 176 (D.D.C. 2010).


                                 4
Courts generally grant dismissals under Rule 41(a)(2) “unless

the defendant would suffer prejudice other than the prospect of

a second lawsuit or some tactical disadvantage.”    Conafay v.

Wyeth Labs., 793 F.2d 350, 353 (D.C. Cir. 1986).

     One of the “terms” upon which the Court may condition

dismissal is the payment of the defendant’s attorneys’ fees and

costs.   See Taragan v. Eli Lilly & Co., 838 F.2d 1337, 1340

(D.C. Cir. 1988).   The purpose of the provision authorizing the

Court to dismiss a case “on terms that the court considers

proper” is to protect a defendant from any prejudice or

inconvenience that may result from a plaintiff’s premature

dismissal.    GAF Corp. v. Transamerica Ins. Co., 665 F.2d 364,

369 (D.C. Cir. 1981).   Attorneys’ fees may be awarded where

“costs were undertaken unnecessarily.”    Id. at 367.

III. ANALYSIS

     Defendants argue that plaintiff’s motions for summary

judgment were premature, and that the legal work defense counsel

performed in defending against the premature motions will be

rendered useless by dismissal of this action.    See Defs.’

Response to Pl.’s Mot. to Voluntarily Dismiss Claims, Docket No.

22, at 3-4.   Defendants therefore ask the Court to award them

attorneys’ fees and costs related to the filing of their

oppositions to plaintiff’s motions for summary judgment.

                                  5
Plaintiff argues that this case falls outside the mainstream of

cases in which attorneys’ fees and costs were awarded upon

voluntary dismissal, that plaintiff’s motion to dismiss is

timely, and that defendants will not suffer legal prejudice by

dismissal of this action.    See Pl.’s Reply in Supp. of Mot. to

Voluntarily Dismiss Claims, Docket No. 24, at 3-5.

     As discussed in more detail below, the Court concludes that

voluntary dismissal here is appropriate, and the Court declines

to condition that dismissal on an award of attorneys’ fees.

     A. Dismissal Under Rule 41(a)(2)

     Neither party disputes that plaintiff seeks voluntary

dismissal in good faith.    In addition, considering the four

factors set forth above, the Court concludes that voluntary

dismissal under Rule 41(a)(2) is proper.   As to the first and

fourth factors, this case is in the early stages of litigation.

No discovery has been completed, and defendants have not likely

made any effort or expense in preparing for trial.   Therefore,

the Court finds that the resources defendants have expended thus

far do not amount to legal prejudice.   As to the second factor,

the Court finds that there has been no delay or lack of

diligence on the part of plaintiff in prosecuting this action.

Finally, plaintiff has provided an adequate explanation for

dismissal: the issue at the heart of this action is, or will

                                  6
shortly become, moot.    Defendants do not challenge that

rationale.    The Court therefore concludes that voluntary

dismissal is appropriate under Rule 41(a)(2).

        B. Attorneys’ Fees and Costs Under Rule 41(a)(2)

        The Court next determines whether attorneys’ fees and costs

should be imposed as a condition of dismissal under Rule

41(a)(2).    As noted above, attorneys’ fees and costs are

commonly awarded where costs are undertaken “unnecessarily.”

GAF, 665 F.2d at 367.     The purpose of such an award is to

protect defendants from undue prejudice or inconvenience caused

by voluntary dismissal.     See id. at 367, 369.

        Like in SBM Wageneder Gesellschaft, M.B.H. v. American

Arbitration Association, the Court finds that the instant case

is fundamentally different from cases in which courts have

awarded attorneys’ fees as a condition of dismissal.       See 113

F.R.D. 659, 662 (D.D.C. 1987) (citing Conafay, 793 F.2d at 351;

McLaughlin v. Cheshire, 676 F.2d 855 (1982); GAF, 665 F.2d at

366).    As the court stated in SBM Wageneder Gesellschaft, in

cases in which fees were awarded, “the scenario [was] the same:

the plaintiff, having filed in federal court, discovered that

federal jurisdiction could not be maintained and consequently

sought a voluntary dismissal in order to pursue its claims in

another forum.”    113 F.R.D. at 662.   In those cases, “the root

                                   7
of the court’s decision to award compensation was that

defendant’s expenses were ‘undertaken unnecessarily.’”     Id.

     Here, by contrast, the Court is not convinced that

plaintiff’s motions for summary judgment forced the defendants

to undertake expenses unnecessarily.     Plaintiff’s motions sought

a declaratory judgment regarding the legality of a non-compete

provision that was allegedly precluding him from obtaining

employment in his field of expertise.2    The Court’s Order denying

the motions—based on the Court’s determination that genuine

issues of material fact precluded summary judgment—did not

render the plaintiff’s motions unnecessary.     See id. at 663 (“To

condition a voluntary dismissal on an award of fees, the case

law requires that defendant’s efforts must have been

unnecessary, not that the plaintiff must prevail.”).    Moreover,

there is no evidence that plaintiff intends to re-file his suit

in another forum, or that he is seeking dismissal for a tactical

advantage.   Instead, and as defendants do not contest, the

purpose for dismissal is that the central issue in this case has


2
  Plaintiff’s two motions—a motion for partial summary judgment
and a motion for summary judgment on defendants’ counterclaim—
both sought identical relief: a declaratory judgment that the
non-compete provision at issue was unenforceable. Consequently,
the two motions were virtually identical, as were defendants’
two opposition briefs. Compare Defs.’ Mem. in Opp’n to Mot. for
Partial Summ. J., Docket No. 8 with Defs.’ Mem. in Opp’n to Mot.
for Summ. J. on Defs.’ Countercl., Docket No. 17.
                                8
become moot.   However, the mere fact that plaintiff’s central

claim has become moot does not render his earlier efforts, or

defendants’ responses, unnecessary, and therefore does not

entitle defendants to attorneys’ fees.    See id. at 663 (holding

that where plaintiffs brought a motion for a temporary

restraining order, which was denied, “[t]he fact that the

defendant was forced to respond to the plaintiffs’ motions [did]

not constitute prejudice warranting an award of fees”); see also

Independence Fed. Sav. Bank v. Bender, 230 F.R.D. 11, 15 (D.D.C.

2005) (finding that defendant’s attorneys’ expenses were not

undertaken unnecessarily where a proposed merger was terminated

beyond the eve of trial, thus mooting the principle goal of

plaintiff’s action).

IV.   CONCLUSION

      For the foregoing reasons, the Court hereby GRANTS

plaintiff Mittakarin’s motion to voluntarily dismiss this action

pursuant to Fed. R. Civ. P. 41(a)(2), and the Court, in its

discretion, declines to award attorneys’ fees and costs to

defendants.    An appropriate Order accompanies this Memorandum

Opinion.

Signed:    EMMET G. SULLIVAN
           United States District Judge
           January 17, 2012



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