Calvo v. Summit Broadband Inc., et al

MOTION to Dismiss Claims for David Calvo

M.D. Fla.February 18, 2019

Calvo v. Summit Broadband, Inc., et al Page 1 of 4 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION DAVID CALVO, ) JOSE BARRON and ) JAMES QUILES ) ) ) Plaintiffs, ) ) v. ) CASE NO. 2:16-CV-746-FtM- ) 38MRM ) SUMMIT BROADBAND INC.; ) WAYNE FOGELSON; ) and SHAWN WALLACE, ) ) Defendants. ) / PLAINTIFF’S MOTION TO DISMISS CLAIMS Plaintiff DAVID CALVO by and through undersigned counsel, hereby request dismissal of all of his claims against Defendants Summit Broadband, Inc, Wayne Fogelson, and Shawn Wallace (collectively referred to as Defendants) with prejudice, and in support thereof, state as follows: 1. Plaintiff CALVO files this Motion requesting dismissal of his claims because he no longer wishes to pursue his claims in light of the time and expense required to proceed. 2. The parties have not reached settlement; Plaintiff merely wishes to dismiss Case 2:16-cv-00746-SPC-MRM Document 114 Filed 02/18/19 Page 1 of 4 PageID 1168 Calvo v. Summit Broadband, Inc., et al Page 2 of 4 his claims for the reasons stated above. 3. Plaintiff CALVO and Defendant SUMMIT BROADBAND, INC. have executed a joint stipulation agreeing to dismissal of Plaintiff’s claims pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii). 1 [Doc. 113]. 4. Thus, Plaintiff CALVO respectfully requests an order from this Court dismissing his claims with prejudice. WHEREFORE, Plaintiff DAVID CALVO respectfully request an Order from this Court dismissing his claims with prejudice, with the parties to bear their own fees and costs. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION TO DISMISS THE CLAIMS OF JOSE BARRON AND JAMES QUILES A Plaintiff may elect to dismiss his FLSA claims with prejudice, and without reaching settlement, by informing the court that he has just decided to dismiss his case without consideration. See Santos v. Gomez, LLC, Case No. 2:13- cv-271-FtM-29UAM, p. 2 (M.D. Fla. Aug. 26, 2013) (“If… plaintiff has just decided to dismiss her case without consideration from defendants, plaintiff can simply tell the Court that no settlement is involved.”); Davis v. Sanibeldq, LLC, Case No. 2:14-cv-22-FtM-38CM, p. 2 (M.D. Fla. Mar. 25, 2014 (“If Plaintiff 1 Defendants Wayne Fogelson, and Shawn Wallace have not appeared in this case, as neither filed an answer, nor motion for summary judgment. Case 2:16-cv-00746-SPC-MRM Document 114 Filed 02/18/19 Page 2 of 4 PageID 1169 Calvo v. Summit Broadband, Inc., et al Page 3 of 4 wishes to voluntarily dismiss her claim, she may do so upon confirmation from counsel that there was no settlement.”); Jones v. Carswell Prop. Maint., Inc., Case No. 09-22027-CIV-GOODMAN, p. 1-2 (S.D. Fla. Sep. 12, 2011) (dismissing the plaintiff’s FLSA claims with prejudice after joint stipulation was filed, and the plaintiff informed the court that he had moved to a different state, and did not have the financial resources to travel to Florida, and take time of work). Here, Plaintiff CALVO seeks to dismiss his FLSA claims against Defendants without reaching settlement because Plaintiff CALVO no longer wishes to pursue his claims because, as in Jones, he lacks the time, and financial resources needed to proceed. Specifically, Plaintiff CALVO has moved to Illinois, and cannot afford the cost, and time off work to travel to Florida. CONCLUSION For the forgoing reasons, the Court should permit dismissal of Plaintiff DAVID CALVO’s claims against Defendants. Date: February 18th, 2019 Respectfully Submitted, /s/ Jeremiah J. Talbott JEREMIAH J. TALBOTT, ESQ. FL Bar No. 0154784 Law Offices of Jeremiah J. Talbott, P.A. 900 East Moreno Street Pensacola, FL 32503 (850) 437-9600 / (850) 437-0906 (fax) Case 2:16-cv-00746-SPC-MRM Document 114 Filed 02/18/19 Page 3 of 4 PageID 1170 Calvo v. Summit Broadband, Inc., et al Page 4 of 4 jj@talbottlawfirm.com; civilfilings@talbottlawfirm.com Attorneys for the Plaintiffs FLService@gtlaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this _18th__ day of February, 2019, the foregoing Motion has been sent to counsel for the Defendants as listed below via CM/ECF. Dawn I. Giebler-Millner, Esq. FL Bar No. 856576 Catherine H. Molloy, Esq. FL Bar No. 33500 Greenberg Traurig, P.A. 450 South Orange Avenue, Suite 650 Orlando, FL 32801 gieblerd@gtlaw.com molloyk@gtlaw.com culpepperd@gtlaw.com FLService@gtlaw.com /s/ Jeremiah J. Talbott JEREMIAH J. TALBOTT, ESQ. Case 2:16-cv-00746-SPC-MRM Document 114 Filed 02/18/19 Page 4 of 4 PageID 1171