                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                             No. 05-15368                 ELEVENTH CIRCUIT
                                                              JUNE 23, 2006
                         Non-Argument Calendar
                                                           THOMAS K. KAHN
                       ________________________                 CLERK

                D. C. Docket No. 04-00185-CV-OC-10-GRJ


ROBERTS ENTERPRISES, INC.,
a Florida corporation,

                                                           Plaintiff-Appellee,

                                  versus

OLYMPIA SALES, INC.,

                                                        Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (June 23, 2006)

Before DUBINA, HULL and COX, Circuit Judges.

PER CURIAM:
      Defendant Olympia Sales, Inc. (“Olympia”) appeals the district court’s

judgment of voluntarily dismissal of Plaintiff Roberts Enterprises, Inc.’s (“Roberts”)

lawsuit against Olympia without prejudice, pursuant to Fed. R. Civ. P. 41(a)(2).

Olympia contends that the district court abused its discretion in dismissing the

complaint without prejudice because Roberts delayed in moving for dismissal,

Olympia had incurred significant legal expenses in defending the case, Olympia had

filed a motion for summary judgment that was pending at the time of the dismissal,

and Olympia was deprived by the dismissal without prejudice of a potential malicious

prosecution claim against Roberts.

      After review of the briefs and the record on appeal, we affirm. The district

court did not abuse its discretion in granting Roberts’s motion for a voluntary

dismissal on the condition that Roberts could not reassert the claims made in this

lawsuit in another case without first paying Olympia $139,121.98 (the costs and

attorneys’ fees Olympia incurred in defense of this lawsuit). See Pontenberg v.

Boston Scientific Corp., 252 F.3d 1253 (11th Cir. 2001).

      AFFIRMED.




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