Diana Arias v. Joseph T. Cameron ( 2015 )


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  •            Case: 13-14863    Date Filed: 01/20/2015   Page: 1 of 28
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    _________________________
    No. 13-14863
    _________________________
    D.C. Docket No. 1:13-cv-01254-TCB
    DIANA ARIAS,
    Plaintiff-Appellee,
    versus
    JOSEPH T. CAMERON, et al.,
    Defendants-Appellants.
    __________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    __________________________
    (January 20, 2015)
    Before WILSON, ROSENBAUM, and BLACK, Circuit Judges.
    Case: 13-14863     Date Filed: 01/20/2015   Page: 2 of 28
    ROSENBAUM, Circuit Judge:
    On the football field, a team with a weak defense may choose to emphasize
    its offense. The trouble is, in the end, it can be hard to win without a reliable
    defense.
    That is much like the problem that Defendants-Appellants Joseph T.
    Cameron and The Dow Chemical Company (“Dow”) have in this case. Plaintiff-
    Appellee Diana Arias sued Cameron and Dow for injuries that Cameron allegedly
    inflicted on Arias while Cameron was acting within the course of his employment
    for Dow. When Defendants sought judgment in the case on the basis that Arias
    had allegedly failed to timely perfect service upon them before the statute of
    limitations ran, Arias moved to voluntarily dismiss the case without prejudice. By
    doing so, Arias hoped to take advantage of Georgia law, which allows a plaintiff
    who originally files a case within the statute-of-limitations period to voluntarily
    dismiss her case and refile it within six months, thereby triggering a new period in
    which to timely effect service. Defendants went on the offensive, opposing Arias’s
    motion for voluntary dismissal on the basis that a voluntary dismissal without
    prejudice would prejudice them by depriving them of their statute-of-limitations
    defense.
    The district court granted Arias’s motion and voluntarily dismissed the case
    without prejudice. Defendants now appeal.
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    But Defendants’ statute-of-limitations defense is, by no means, a certain
    winner.    So their offense—that they will suffer prejudice as the result of a
    voluntary dismissal without prejudice because they will lose their statute-of-
    limitations defense—necessarily falters since it depends on their unreliable
    defense.
    And even if Defendants had a viable statute-of-limitations defense that
    would be destroyed by a voluntary dismissal without prejudice, all of the other
    equities in this case—which a district court should consider under Rule 41(a)(2) in
    determining whether to grant a motion for voluntary dismissal—favor Arias. For
    these reasons, we find that the district court did not abuse its discretion when it
    granted Arias’s motion for voluntary dismissal without prejudice.
    I.
    A. The Nature of the Case
    In her complaint, Arias alleged that, on March 19, 2011, she was riding her
    bicycle in Georgia when Defendant-Appellant Cameron, driving a rental car, failed
    to yield and collided with her. According to the complaint, the car that Cameron
    was driving was insured by Cameron’s employer, Dow, and Cameron was
    operating the car within the course and scope of his employment. As a result of the
    incident, the complaint asserts, Arias suffered “great bodily injuries.”
    3
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    When the incident occurred, Cameron produced a California driver’s license
    to the Cobb County Police Department, which cited Cameron for failure to yield
    under Georgia statute O.C.G.A. § 40-6-71 and issued Cameron a ticket.
    On February 25, 2013, just over three weeks before the end of Georgia’s
    two-year statutory period for filing such claims,1 Arias filed suit in Cobb County
    State Court against Cameron and Dow. She claimed that she was entitled to
    damages under two theories of recovery: negligence and stubborn litigiousness.
    B. Arias’s Initial Attempts at Service
    Upon the filing of her complaint, Arias attempted to serve both Cameron and
    Dow. With regard to Cameron, Arias stated in the proceedings below that she
    believed him to be a California resident, based on his production of a California
    driver’s license at the time of the incident and based on Georgia law that generally
    requires all residents of the state for more than thirty days to obtain a Georgia
    driver’s license before operating a motor vehicle in the state, see O.C.G.A. § 40-5-
    20(a). For this reason, Arias attempted to serve Cameron with the summons and
    complaint pursuant to Georgia’s Non-Resident Motorist Act, O.C.G.A. § 40-12-1,
    et seq. (“NRMA”), which sets forth requirements for service on those who are not
    residents of Georgia, as the service requirements relate to complaints involving the
    operation of a motor vehicle.
    1
    In Georgia, the statute of limitations for bringing a tort action involving claims of
    personal injuries is two years from date that the cause of action accrued. See O.C.G.A. § 9-3-33.
    4
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    In an effort to comply with the NMRA, on March 13, 2013, Arias mailed the
    summons and complaint to the Georgia Secretary of State to obtain service on
    Cameron. Arias also sent Cameron a copy of the summons and complaint by
    certified mail on the same date, which Cameron later received on March 23, 2013.
    With respect to Dow, counsel for Arias attested in the district-court
    proceedings that, on February 6, 2013, he visited the Georgia Secretary of State’s
    website to find the registered agent for Dow, but his query resulted in a showing of
    no agent for service of process in Georgia. According to counsel for Arias, he did
    not learn until “[m]uch later” that the website was “in transition and not
    functioning properly.”
    Based on the erroneous belief that Dow lacked a corporate presence in
    Georgia, Arias mailed a copy of the summons and complaint to Georgia’s
    Secretary of State on February 28, 2013, to obtain service on Dow in Delaware, its
    place of incorporation. Arias also sent the summons and complaint to Dow’s
    registered agent in Delaware via certified mail on March 13, 2013. On that same
    date, Arias sent the summons and complaint to the New Castle County Sheriff’s
    Department as well, to make service on Dow in Delaware.
    On March 19, 2013, the day upon which Dow contends that the two-year
    statute of limitations expired under O.C.G.A. § 9-3-33, Dow received the summons
    and complaint that Arias sent by certified mail on March 13, 2013. One week
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    later, on March 27, 2013, the New Castle County Sheriff’s Department personally
    served Dow’s registered agent in Delaware with the summons and complaint.
    Although Arias believed that she had adequately served Dow, on April 1,
    2013, Georgia’s Secretary of State sent counsel for Arias a letter stating that Dow
    was actually registered with the Office of Georgia Secretary of State, so the Office
    returned the documents that Arias’s counsel had sent it for service upon Dow.
    Alerted to the fact that Dow had a registered agent in Georgia, Arias immediately
    attempted to obtain personal service on Dow’s agent. Towards this end, on April
    4, 2013, Arias sent the summons and complaint to the Gwinnett County Sheriff’s
    Department for service on Dow’s Georgia agent. The Sheriff’s Department served
    Dow’s registered agent on April 9, 2013.
    C. Removal of the State Court Action and the Defendants’ Motion to Dismiss
    As a result of Arias’s service efforts, both Dow and Cameron received notice
    of Arias’s action, and, on April 17, 2013, Dow and Cameron removed the matter to
    federal court pursuant to 28 U.S.C. § 1441, asserting that the district court enjoyed
    diversity jurisdiction over the parties under 28 U.S.C. § 1332.
    One week later, on April 25, 2013, Defendants filed a motion to dismiss
    pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6), Fed. R. Civ. P. In the motion to
    dismiss, Defendants asserted that Arias had failed to timely and properly serve
    them, so the matter should be dismissed for improper service of process. They
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    further argued that dismissal should be with prejudice, since, at the time that
    Defendants filed their motion to dismiss, in Defendants’ view, Arias’s claims were
    time-barred under Georgia’s two-year statute of limitations.
    More specifically, Dow contended that Arias did not make proper service
    upon it until April 9, 2013, after the statute of limitations expired. As to Cameron,
    Defendants asserted that service on him under Georgia’s NRMA was improper
    because Cameron claimed to have actually been a resident of Georgia at the time
    of the accident.2 So Defendants argued that Arias should have served Cameron in
    accordance with Georgia’s long-arm statute, O.C.G.A. § 9-10-91, which required
    Arias to personally serve Cameron in California—something that Arias had not
    done at that point.3
    Cameron also contended that even if he were not considered to be a resident
    of Georgia at the time of the incident, the NMRA service was deficient because
    Arias had failed to comply with its strict requirements in that Arias allegedly had
    omitted required pieces of information and did not file the proper papers with the
    2
    Despite the fact that he still apparently had no Georgia driver’s license at the time of the
    incident, according to Cameron, he had lived in Georgia for approximately seven months and
    was considering staying in Georgia permanently. Cameron stated that he engaged in daily life
    activities such as entertaining friends at his home, had a gym membership, and received personal
    mail in Georgia. 
    Id. 3 Under
    O.C.G.A. § 9-10-94, a person of sound mind, who is of the age of majority and is
    a nonresident of Georgia subject to personal jurisdiction under Georgia’s long-arm statute must
    be served either personally or by leaving copies of the summons and complaint “at [his] dwelling
    house or usual place of abode with some person of suitable age and discretion then residing
    therein,” O.C.G.A. § 9-11-4(e)(7).
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    state court after service.4      Cameron also alleged that the NMRA service was
    untimely since he did not receive the complaint and summons by certified mail
    until March 23, 2013, after the statute of limitations had expired.
    D. Arias’s Further Attempts to Serve Cameron
    The April 24, 2013, filing of the motion to dismiss put Arias on notice that
    Cameron contended that he was a resident of Georgia at the time of the accident.
    So Arias pursued personal service on Cameron in California, pursuant to Georgia’s
    long-arm statute—the provision that would govern service on Cameron in
    California if Cameron were a resident of Georgia at the time of the incident.
    On April 29, 2013, Arias sent the summons and complaint to the San
    Bernardino’s Sheriff’s Office in California to accomplish service on Cameron.
    According to the San Bernardino Sheriff’s Department, it attempted to serve
    Cameron on four occasions between May 4, 2013, and May 29, 2013, but it had no
    success. On the second attempt, the Sheriff’s Department left a business card with
    a name and contact telephone number, requesting that Cameron call the San
    Bernardino Sheriff’s Department, after no one answered Cameron’s door. Still, it
    was unable to serve Cameron.
    4
    For instance, although Arias mailed Cameron a copy of the complaint and summons, the
    defendants claimed that she did not include the notice of service upon the Secretary of State, as
    required by O.C.G.A. § 41-12-2. The defendants also contended that Arias did not “append”
    Cameron’s return receipt, her affidavit of compliance, and the summons, process, and complaint
    to the other papers and file them collectively with the state court to establish that she had
    complied with the NMRA.
    8
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    So on May 16, 2013, counsel for Arias sent Cameron’s attorney a letter
    stating that the San Bernardino Sheriff’s Department had been trying to serve
    Cameron but was having no success. Counsel for Arias therefore asked Cameron’s
    counsel whether Cameron would be willing to waive service, but Cameron refused.
    As a result and after the San Bernardino Sheriff’s Department had made four
    unsuccessful service attempts on Cameron, on May 29, 2013, Arias hired a process
    server in California and requested that the server “stake out” Cameron’s residence
    until accomplishing service on Cameron. Two days later, on May 31, 2013, the
    process server personally served Cameron with the summons and complaint under
    Georgia’s long-arm statute.
    E. Cameron and Dow’s Motion for Summary Judgment
    While Arias was still attempting to serve Cameron under Georgia’s long-
    arm statute, on May 8, 2013, Defendants filed their Answer to the complaint and
    re-filed their motion to dismiss as a motion for judgment on the pleadings,
    pursuant to Rule 12(c).       Defendants continued to make essentially the same
    arguments concerning alleged failure to effect proper service.
    Arias timely opposed the motion, arguing that service of process had been
    timely and proper on both Defendants.         She also asserted that it would be
    inequitable to penalize her under the circumstances, since she had diligently
    pursued service of Defendants. Along with her opposition to Defendants’ motion
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    for summary judgment, Arias moved for voluntary dismissal of the case without
    prejudice, pursuant to Rule 41(a)(2), Fed. R. Civ. P., as an alternative to the
    granting of summary judgment to Defendants. She did so for the express purpose
    of taking advantage of Georgia law, which allows a litigant to refile a case within
    six months of the voluntary dismissal of the action after the expiration of the
    applicable statute of limitations, when the original action was filed within the
    applicable statute of limitations. O.C.G.A. § 9-2-61.
    Defendants opposed Arias’s request for voluntary dismissal. Among other
    reasons, Defendants contended that voluntarily dismissing the case would
    eliminate Defendants’ statute-of-limitations defense, which was based on the claim
    of ineffective timely service of process, since Georgia law allows a plaintiff to
    revive her claims after the statute of limitations has already run and restart the
    service clock.
    The district court granted Arias’s motion to voluntarily dismiss her case and
    denied as moot Defendants’ motion for summary judgment.              But the court
    nonetheless directed that if Arias chose to refile her claims, she must first pay
    Defendants’ attorneys’ fees and costs incurred in this action, as the district court
    determined those costs and fees.     Defendants now appeal the district court’s
    voluntary dismissal of Arias’s claims.
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    II.
    The decision of whether to grant a voluntary dismissal pursuant to Rule
    41(a)(2), Fed. R. Civ. P., falls within the sound discretion of the district court.
    Therefore, we review the district court’s decision to voluntarily dismiss the case
    for an abuse of discretion. See Fisher v. Puerto Rico Marine Mgmt., Inc., 
    940 F.2d 1502
    , 1502-03 (11th Cir. 1991) (per curiam) (citing LeCompte v. Mr. Chip, Inc.,
    
    528 F.2d 601
    , 604 (5th Cir. 1976)5).
    III.
    Rule 41(a) of the Federal Rules of Civil Procedure governs a plaintiff’s
    ability to dismiss an action voluntarily and without prejudice. See Fed. R. Civ. P.
    41(a). The rule allows a plaintiff to do so without seeking leave of court, as long
    as the defendant has not yet filed an answer or a motion for summary judgment.
    Fed. R. Civ. P. 41(a)(1)(A). If a defendant has made such a filing, the plaintiff
    must obtain permission from the court to voluntarily dismiss her case: “Except as
    provided in Rule 41(a)(1), 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).
    Such a dismissal is considered to be without prejudice unless otherwise specified
    by the court.
    5
    Opinions of the Fifth Circuit issued prior to October 1, 1981, are binding precedent in
    the Eleventh Circuit. Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981).
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    A district court enjoys broad discretion in determining whether to allow a
    voluntary dismissal under Rule 41(a)(2), Fed. R. Civ. P. Pontenberg v. Boston
    Scientific Corp., 
    252 F.3d 1253
    , 1255 (11th Cir. 2001) (per curiam). Generally
    speaking, a motion for voluntary dismissal should be granted unless the defendant
    will suffer clear legal prejudice other than the mere prospect of a second lawsuit.
    Id.; 
    Fisher, 940 F.2d at 1502
    –03 (citing Durham v. Fla. E. Coast Ry. Co., 
    385 F.2d 366
    , 368 (5th Cir. 1967)).
    The purpose of Rule 41(a)(2) “is primarily to prevent voluntary dismissals
    which unfairly affect the other side, and to permit the imposition of curative
    conditions.” McCants v. Ford Motor Co., Inc., 
    781 F.2d 855
    , 856 (11th Cir. 1986)
    (citation and internal quotation marks omitted). We must consider the crucial
    question of whether “the defendant [would] lose any substantial right by the
    dismissal.” 
    Pontenberg, 252 F.3d at 1255
    (citation omitted). But, ultimately, the
    determination of whether to grant such a dismissal falls within the sound discretion
    of the district court. 
    Fisher, 940 F.2d at 1503
    (citing 
    LeCompte, 528 F.2d at 604
    ).
    While the district court “should keep in mind the interests of the defendant, for
    Rule 41(a)(2) exists chiefly for protection of defendants,” 
    id., the court
    should also
    weigh the relevant equities and do justice between the parties in each case,
    imposing such costs and attaching such conditions to the dismissal as are deemed
    appropriate. 
    McCants, 781 F.2d at 857
    .
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    Here, Cameron and Dow contend that the district court erred in granting
    Arias’s motion for voluntary dismissal because the dismissal resulted in clear legal
    prejudice to them: the loss of their statute-of-limitations defense if Arias re-files
    her action in Georgia state court. We disagree that the district court abused its
    discretion under the circumstances of this case.
    A. Defendants’ Statute-of-Limitations Defense
    To explain why, we first consider the strength of Defendants’ statute-of-
    limitations defense. If the defense lacked merit, Defendants did not even arguably
    suffer any cognizable prejudice as a result of the voluntary dismissal. We begin
    with a review of applicable Georgia law.
    Although Georgia law requires a process server to effect service within five
    days of receipt of the complaint and summons, O.C.G.A. § 9-11-4(c)(5), it states
    no time limit within which a plaintiff must seek service. Ga. Farm Bureau Mut.
    Ins. Co. v. Kilgore, 
    462 S.E.2d 713
    , 715 (Ga. 1995). So, as long as service is
    perfected before the statute of limitations expires, “the mere time lapse between the
    date of filing and the date of service is not a valid basis for dismissal.” 
    Id. (citation and
    internal quotation marks omitted).
    When a complaint is filed within the limitations period but service is
    perfected after the limitations period ends, service relates back to the time of filing
    “so as to avoid the limitation,” as long as service is timely perfected. Giles v. State
    13
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    Farm Mut. Ins. Co., 
    765 S.E.2d 413
    (Ga. Ct. App. 2014) (citation and quotation
    marks omitted). Although § 9-11-4(c)(5)’s five-day safe-harbor provision applies
    by its language to process servers only and not to parties, service is, nevertheless,
    always timely perfected if a party completes it within that period. See 
    id. If perfected
    service is attempted before the expiration of the statute of limitations but
    is not made within the five-day period and the defendant asserts insufficiency of
    service after the statute of limitations expires, service can still be timely perfected
    and relate back to the time of filing, provided that the plaintiff acts with “the
    greatest possible diligence to serve the defendant from that point forward.”6
    Moody v. Gilliam, 
    637 S.E.2d 759
    , 761 (Ga. Ct. App. 2006) (citation and quotation
    marks omitted).
    Here, Arias attempted to complete service on Dow three different ways
    before the statutory period ended on March 19, 2013: on February 28, 2013, she
    sent a copy of the process to Georgia’s Secretary of State to make service on Dow
    in Delaware; on March 13, 2013, by certified mail, she sent the process to Dow’s
    registered agent in Delaware; and also on March 13, 2013, she arranged for the
    New Castle County Sheriff’s Department to make service on Dow in Delaware.
    6
    Service is also timely perfected if the process server makes service within five days of
    receipt of the summons and complaint from the clerk of court, regardless of how much time
    lapses between the plaintiff’s filing of the action and the process server’s receipt of the complaint
    and summons from the clerk, provided that service is accomplished within the statutory period.
    See Giles, 
    765 S.E.2d 413
    . In this case, however, Plaintiff—not the clerk of court—provided the
    various process servers with process, apparently after Plaintiff had obtained it from the clerk.
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    So it is clear that Arias attempted to perfect service on Dow within the statutory
    period.
    Arias only learned that she did not perfect service on Dow through her
    February and March 2013 efforts when she received the letter dated April 1, 2013,
    that Georgia’s Secretary of State sent advising that Dow was registered with the
    Office of the Georgia Secretary of State. Allowing for three mailing days, cf.
    O.C.G.A. § 9-11-6(e), Arias could have been expected to receive the Secretary of
    State’s letter—and thus notice of insufficient service—on April 4, 2013. And, the
    record reflects that that very day, Arias sent the summons and complaint to the
    Gwinnett County Sheriff’s Department for service on Dow’s Georgia agent. The
    Sheriff’s Department then served Dow’s registered agent on April 9, 2013—within
    the five-day period from its receipt of the summons and complaint for service.
    Because Arias immediately delivered the summons and complaint for service upon
    learning that her original service on Dow was insufficient, and then the process
    server accomplished proper service within the five-day safe-harbor period, Arias
    appears to have timely perfected service on Dow that relates back to the time of her
    filing her complaint within the limitations period.7
    7
    Dow asserts, “Defendants do not concede that any of Plaintiff’s service attempts were
    made by authorized individuals, particularly given the numerous other flaws in her service
    attempts.” This conclusory and entirely unsupported argument cannot carry the day for Dow, in
    light of the fact that the record contains a notarized return of service on Dow, signed by a deputy
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    With regard to Cameron, Arias learned that her service on him was arguably
    insufficient when she received Defendants’ motion to dismiss, which they filed on
    April 24, 2013—a Wednesday. Allowing time for service under O.C.G.A. § 9-11-
    6(e), Arias should have taken action to effect proper service by Monday, April 29,
    2013. See O.C.G.A. §§ 9-11-6(a); 1-3-1(d)(3) (when the last day of the period falls
    on a Saturday or Sunday, the next business day following becomes the last day of
    the period).
    The record reveals that is exactly what she did. On April 29, 2013, Arias
    sent the summons and complaint to the San Bernardino’s Sheriff’s Office for
    service on Cameron in California. Despite four attempts by the Sheriff’s Office to
    serve Cameron between May 4, 2013, and May 29, 2013—including the Sheriff’s
    Office’s leaving of a note on Cameron’s door instructing him to call, and
    Plaintiff’s communications in May with Cameron’s counsel about the service
    attempts—the Sheriff’s Office was unable to make service on Cameron. Arias
    then sought to effect service on Cameron in a third way since learning that
    Cameron contested Arias’s original service efforts: she hired a private process
    server and directed him to “stake out” Cameron’s residence until Cameron was
    personally served. It still took two days to accomplish service. Under these
    circumstances, it appears that Cameron may have been trying to evade service.
    sheriff with Gwinnett County. Georgia law authorizes deputy sheriffs in the county where the
    action is brought or where the defendant is found to serve process. See O.C.G.A. § 9-11-4(c)(1).
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    A defendant’s evasion of service bears on the determination of whether a
    plaintiff exercised diligence in attempting to accomplish service. In Feinour v.
    Ricker Co., 
    604 S.E.2d 588
    (Ga. Ct. App. 2004), overruled on different grounds by
    Giles, 
    765 S.E.2d 413
    at n.2, for example, the plaintiff filed her case on September
    28, 2000, and began service attempts on the defendant on October 2, 2000. 
    Id. at 590.
    Between October 2, 2000, and March 7, 2001, the defendant engaged in acts
    to evade service. 
    Id. at 590-91.
    The plaintiff made several efforts to serve the
    defendant, first through one sheriff’s office, then another, then through a
    professional process server, and last, through a court-appointed process server,
    finally serving him on March 7, 2001, after the statute of limitations had expired.
    
    Id. at 591.
    Although the trial court granted the defendant’s motion for summary
    judgment based on untimely service, the appellate court reversed, concluding that
    where there was “evidence that [the plaintiff’s] efforts to serve [the defendant]
    were continuous and that she exercised the greatest possible diligence in light of
    [the defendant’s] obvious and continued attempts to evade service,” summary
    judgment for untimely service was improper. 
    Id. at 591-92.
    This case is substantially similar to Feinour. While the Feinour plaintiff
    attempted service in four different ways over a five-month period, Arias tried three
    different ways to obtain service on Cameron over a 27-day period. The first
    method—through the San Bernardino Sheriff’s Office—involved four separate
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    attempts, and, with respect to the third method, Arias instructed the process server
    to effectively remain at Cameron’s house until service was accomplished. These
    efforts were comparably continuous and diligent to those of the Feinour plaintiff.
    As a result, when service was finally made on Cameron on May 31, 2013, it should
    have related back to the filing of the complaint before the expiration of the statute
    of limitations. Thus, Defendants’ statute-of-limitations defense appears to lack
    merit.
    B. Precedent
    But even if we very charitably described Defendants’ statute-of-limitations
    defense as potentially viable—a description that we do not endorse, the district
    court still did not abuse its discretion in voluntarily dismissing the case without
    prejudice because our precedent allowed it to do so. McCants v. Ford Motor Co.,
    Inc., 
    781 F.2d 855
    (11th Cir. 1986), decided nearly thirty years ago, drives the
    outcome of this issue.
    In McCants, we held that, under the facts of the case, the loss of a statute-of-
    limitations defense alone did not necessarily constitute per se legal prejudice
    sufficient to bar a dismissal without prejudice under Rule 41. 
    Id. at 859.
    The
    plaintiff in McCants filed a wrongful-death action under Mississippi products-
    liability law in an Alabama federal court, based on a jeep accident that occurred in
    Mississippi. 
    Id. at 856.
    When the plaintiff originally filed suit, she did so within
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    the limitations period, but she sued the wrong party, A.M. General, believing it to
    be the manufacturer of the jeep. 
    Id. When she
    discovered the error, the plaintiff
    sought leave to amend her complaint to add Ford as a defendant, since it was the
    actual manufacturer of the jeep. 
    Id. Rather than
    granting the plaintiff leave to
    amend the complaint, and after the one-year statute of limitations had run under
    Alabama law, the district court dismissed the action without prejudice. 
    Id. Shortly thereafter,
    the plaintiff filed a second suit, this time naming Ford as a defendant.
    
    Id. Ford did
    not plead the statute of limitations in its answer but raised it in an
    amended answer about eight months after the initiation of the suit and a month
    before it filed its summary-judgment motion. 
    Id. at 857.
    The district court denied
    the motion for summary judgment and, the following day, granted the plaintiff’s
    motion for dismissal without prejudice.       
    Id. The dismissal
    without prejudice
    provided the plaintiff with the opportunity to refile the action in Mississippi, which
    had a longer limitations period.
    On appeal, Ford argued, among other things, that it had suffered legal
    prejudice when the case was dismissed without prejudice because it had lost its
    statute-of-limitations defense. 
    Id. Ford further
    contended that the district court
    had abused its discretion in allowing the dismissal because it had failed to
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    acknowledge the importance of the loss of Ford’s limitation defense when the
    court balanced the equities of the case. 
    Id. We upheld
    the district court’s granting of the plaintiff’s motion to dismiss,
    stating, “[T]he likelihood that a dismissal without prejudice will deny the
    defendant a statute of limitations defense does not constitute plain legal prejudice
    and hence should not alone preclude such a dismissal.” 
    Id. at 858.
    We found
    support for this view in our precedent—namely, Durham v. Florida East Coast
    Railway Co., 
    385 F.2d 366
    . 
    Id. We also
    noted that “no evidence in the record
    [suggested] that [McCants] or her counsel acted in bad faith in filing this action in
    Alabama or in filing it more than one year after the accident occurred.” 
    Id. at 859.
    Under the circumstances, we concluded that Ford could not be said to have
    suffered “any plain legal prejudice other than the prospect of a second lawsuit on
    the same set of facts.” 
    Id. Consequently, we
    determined that the district court did
    not abuse its discretion in allowing the dismissal without prejudice because the loss
    of a valid statute-of-limitations defense did not alone necessarily constitute a bar to
    dismissal without prejudice. 
    Id. McCants does
    not require a district court to find a lack of legal prejudice
    every time a defendant is potentially stripped of a statute-of-limitations defense.
    Rather, McCants and its progeny hold only that the loss of a statute-of-limitations
    defense alone does not amount to per se prejudice requiring denial of a voluntary
    20
    Case: 13-14863     Date Filed: 01/20/2015   Page: 21 of 28
    dismissal without prejudice. A district court must look to the particular facts of the
    case, including, among others, whether the plaintiff’s counsel has acted in bad
    faith, and “weigh the relevant equities and do justice between the parties” when
    evaluating a motion for a voluntary dismissal under Rule 41(a)(2). 
    McCants, 781 F.2d at 857
    ; Goodwin v. Reynolds, 
    757 F.3d 1216
    , 1219 (11th Cir. 2014). Nor is it
    a “bar to a voluntary dismissal that the plaintiff may obtain some tactical advantage
    over the defendant in future litigation.”     
    Goodwin, 757 F.3d at 1219
    (citing
    
    McCants, 781 F.2d at 856-57
    ).
    Here, based on our review of the underlying facts, we conclude that the
    district court acted well within its discretion when it granted Arias’s motion for
    voluntary dismissal. First, the parties here do not dispute that Arias filed her
    lawsuit in Georgia state court before the two-year statute of limitations ran.
    Second, as explained above, Arias acted diligently in attempting to serve Cameron
    and Dow with the summons and complaint. Third, none of the facts of this case
    demonstrate bad faith on the part of Arias’s counsel, a factor that should be
    examined when considering a motion for voluntary dismissal without prejudice.
    Fourth, Defendants’ claimed statute-of-limitations defense is weak, at best. And,
    finally, the only reason that Defendants even arguably have a statute-of-limitations
    defense is because they removed the case to federal court. Had the case stayed in
    Georgia court, where Arias chose to file it, there would have been no question that
    21
    Case: 13-14863    Date Filed: 01/20/2015   Page: 22 of 28
    she would have been able to voluntarily dismiss the case and take advantage of
    Georgia’s six-month refiling provision. So Defendants effectively “created” the
    very statute-of-limitations defense that they now complain that they have been
    “stripped” of—a defense that did not even arguably exist until they removed the
    case to federal court.
    Moreover, although Defendants suggest that Arias should not be able to
    avoid the entry of summary judgment by voluntarily dismissing her action, for the
    reasons that we have previously discussed, it is surely not certain that summary
    judgment was appropriate. And, even if summary judgment were likely, this
    circuit has declined to adopt a bright-line rule precluding a district court from
    granting a Rule 41(a)(2) voluntary dismissal without prejudice when a motion for
    summary judgment is pending. See 
    Pontenberg, 252 F.3d at 1258
    . As we have
    explained, “the mere attempt to avoid an adverse summary judgment ruling in and
    of itself, particularly where there is no evidence of bad faith, does not constitute
    plain legal prejudice.” 
    Id. The district
    court’s attachment of conditions to the
    dismissal—requiring Arias to pay attorneys’ fees and costs incurred in this
    litigation if she refiles—further weighs in favor of affirming the district court’s
    voluntary dismissal of the case without prejudice.
    22
    Case: 13-14863       Date Filed: 01/20/2015        Page: 23 of 28
    Nor, as Defendants urge, is McCants inconsistent with controlling precedent
    in this Circuit.8 Defendants suggest that McCants conflicts with LeCompte v. Mr.
    Chip, Inc., 
    528 F.2d 601
    (5th Cir. 1976), and Exxon Corp. v. Maryland Casualty
    Co., 
    599 F.2d 659
    (5th Cir. 1979). We disagree.
    Neither Exxon nor LeCompte considers or addresses the specific question of
    whether the potential loss of a defense upon voluntary dismissal without prejudice
    alone constitutes per se “prejudice” to a defendant, requiring denial of a motion for
    voluntary dismissal. Rather, these cases use the term “prejudice” in a more general
    sense and do not involve the potential loss of a defense upon voluntary dismissal.
    In fact, in Exxon, our predecessor court did not even consider a motion for
    permissive voluntary dismissal under Rule 41(a)(2). Instead, that case dealt with
    dismissal as of right under Rule 41(a)(1).              And, to the extent that the Court
    discussed prejudice in LeCompte, it relied on Durham v. Florida East Coast
    Railway Co., 
    385 F.2d 366
    (5th Cir. 1967). See 
    LeCompte, 528 F.2d at 604
    .
    Durham—a case that predates both Exxon and LeCompte—is entirely
    consistent with McCants. In Durham, the plaintiff sued his employer for failure to
    8
    When circuit authority is in conflict, a panel should look to the line of authority
    containing the earliest case because a decision of a prior panel cannot be overturned by a later
    panel. Walker v. Mortham, 
    158 F.3d 1177
    , 1188-89 (11th Cir. 1998) (citing Johnson v. City of
    Fort Lauderdale, 
    126 F.3d 1372
    , 1380 n.10 (11th Cir. 1997); Robinson v. Tanner, 
    798 F.2d 1378
    , 1383 (11th Cir. 1986) (per curiam); see also 
    Bonner, 661 F.2d at 1209
    (holding that
    decisions of prior panels are binding on subsequent panels and can be overturned by the court
    sitting en banc only)).
    23
    Case: 13-14863    Date Filed: 01/20/2015   Page: 24 of 28
    provide a safe workplace. 
    Id. at 367.
    The defendant pled contributory negligence
    as an affirmative defense. 
    Id. When the
    matter was called for trial, the plaintiff
    contended that he had discovered new evidence and moved for leave to amend the
    complaint to add a new claim under the Federal Safety Appliance Act, an act under
    which the plaintiff may recover without regard to any contributory negligence. 
    Id. The district
    court denied the motion for leave to amend, prompting the plaintiff to
    move to voluntarily dismiss the suit without prejudice. 
    Id. The trial
    court denied
    the motion and called the case for trial. 
    Id. When counsel
    announced that he could
    not proceed with the trial of the case, the district court dismissed the action with
    prejudice. 
    Id. The plaintiff
    then appealed.
    On appeal, the former Fifth Circuit emphasized that dismissing actions with
    prejudice was the most severe sanction and should be imposed only when a clear
    record of delay or contumacious conduct by the plaintiff exists. 
    Id. at 368
    (citation
    omitted). Because those circumstances did not exist in Durham, the Court opined
    that the “crucial question” in determining whether voluntary dismissal should have
    been granted was whether the defendant would lose any substantial right by the
    dismissal without prejudice requested by the plaintiff. 
    Id. As the
    Court explained,
    “[D]ismissal should be allowed unless the defendant will suffer some plain legal
    prejudice other than the mere prospect of a second law suit. It is no bar to
    dismissal that plaintiff may obtain some tactical advantage thereby.” 
    Id. (citation 24
                 Case: 13-14863     Date Filed: 01/20/2015   Page: 25 of 28
    and quotation marks omitted). Although a voluntary dismissal would have resulted
    in the defendant’s loss of its contributory-negligence defense, the Court concluded
    that the record did not disclose any prejudice to the defendant upon the granting of
    a voluntary dismissal, other than the annoyance of a second litigation on the same
    subject. 
    Id. at 369.
    So the Court reversed the district court’s dismissal with
    prejudice and remanded the case for dismissal of the complaint without prejudice.
    
    Id. Durham supports
    our subsequent decision in McCants, where we concluded
    that the loss of a statute-of-limitations defense alone does not constitute per se
    prejudice requiring denial of a motion for voluntary dismissal.           Indeed, our
    decision in McCants cited to and relied upon Durham. In short, McCants does not
    violate our prior-precedent rule, and we are bound to follow it.
    We also respectfully reject Defendants’ contention that McCants should be
    limited to its facts. Defendants suggest that McCants should apply to only those
    situations where a defendant delays in raising the affirmative defense that it hopes
    to preserve against a voluntary dismissal. Because Defendants here raised their
    statute-of-limitations defense in a motion to dismiss one week following their
    removal of the case to federal court, they assert that McCants should not apply.
    But the way in which we framed the issue in McCants reveals that the timing
    of the defendant’s assertion of the defense did not drive the result in the case. As
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    Case: 13-14863    Date Filed: 01/20/2015    Page: 26 of 28
    we described it, the issue in McCants was simply “whether it constitutes an abuse
    of discretion for a district court to dismiss without prejudice an action that is time-
    barred as brought, where the purpose or effect of such dismissal is to allow the
    plaintiff to refile the action in a place or manner in which it is not similarly
    
    barred.” 781 F.2d at 858
    . Nor did we limit our holding that “the loss of a valid
    statute of limitations defense [does not] constitute a bar to a dismissal without
    prejudice,” 
    id. at 859,
    to circumstances where defendants delay in raising their
    statute-of-limitations defense. And we decline to so restrict McCants today.
    We recognize, as Defendants point out, that other circuits have found clear
    legal prejudice to exist when a Rule 41(a)(2) dismissal is granted in the face of a
    valid statute-of-limitations defense. See Wojtas v. Capital Guardian Trust Co.,
    
    477 F.3d 924
    , 927-28 (7th Cir. 2007); Grover ex rel. Grover v. Eli Lilly & Co., 
    33 F.3d 716
    , 719 (6th Cir. 1994); Metro. Fed. Bank of Iowa F.S.B. v. W. R. Grace &
    Co., 
    999 F.2d 1257
    , 1262 (8th Cir. 1993); Phillips v. Illinois Cent. Gulf R.R., 
    874 F.2d 984
    , 987 (5th Cir.1989). And we acknowledge that both the Fifth and Eighth
    Circuits have expressly announced their disagreement with our decision in
    McCants. See 
    Phillips, 874 F.2d at 987
    ; Metro. Fed. Bank of 
    Iowa, 999 F.2d at 1263
    .
    But we are bound by the prior-precedent rule to follow McCants. See Smith
    v. GTE Corp., 
    236 F.3d 1292
    , 1303 (11th Cir. 2001) (citation and quotation marks
    26
    Case: 13-14863     Date Filed: 01/20/2015    Page: 27 of 28
    omitted) (“Under our prior precedent rule, a panel cannot overrule a prior one’s
    holding even though convinced it is wrong.”). So even if we disagreed with it, we
    would nonetheless be required to be faithful to it. See 
    id. We do
    not disagree with McCants, though. Rule 41(a)(2) contemplates that
    the district court will weigh the equities in determining how to rule on a motion for
    voluntary dismissal. The equities of this case—including the dubious merit of
    Defendants’ statute-of-limitations defense, the consistent diligence of Arias, the
    apparent attempts by Cameron to evade service, and the fact that Defendants could
    not even arguably invoke their statute-of-limitations defense had they not removed
    the case from Arias’s chosen forum court in the first place—provide a good
    example of why a per se rule prohibiting district courts from allowing dismissals
    without prejudice any time that a statute-of-limitations defense might possibly be
    lost could significantly undermine the district court’s ability to balance the equities
    in ruling on a motion for voluntary dismissal under Rule 41(a)(2).
    The fact that McCants does not render loss of a statute-of-limitations defense
    per se prejudice does not mean that a party that could suffer the loss of such a
    defense upon a voluntary dismissal without prejudice will necessarily be at the
    losing end of a motion for voluntary dismissal without prejudice. Rather, McCants
    allows for a motion for voluntary dismissal without prejudice to be denied if a
    statute-of-limitations defense could be lost, provided that consideration of all of the
    27
    Case: 13-14863     Date Filed: 01/20/2015   Page: 28 of 28
    equities in the case warrant such a conclusion. We think that this is the correct
    formulation of what Rule 41(a)(2) requires.
    Finally, based on all of these considerations, we conclude that the district
    court did not abuse its discretion when it granted Arias’s motion for voluntary
    dismissal without prejudice under Rule 41(a)(2).
    V.
    In sum, we conclude that it is unlikely that Defendants had a meritorious
    statute-of-limitations defense in the first place. But even if they did, in view of the
    equities, the district court did not abuse its discretion in granting Arias’s motion for
    voluntary dismissal without prejudice pursuant to Rule 41(a)(2). We therefore
    affirm the order of the district court.
    AFFIRMED.
    28