ORDER GRANTING PLAINTIFFS' MOTION TO DISMISS WITHOUT PREJUDICE

JULIE A. ROBINSON, United States District Judge

The matter is currently before the Court on plaintiffs' Motion to Dismiss the action without prejudice (Doc. 29). Defendant SmithKline Beecham Corporation d/b/a GlaxoSmithKline ("GSK") has filed a response seeking conditions upon the dismissal (Doc. 30). Plaintiffs' motion is granted subject to conditions the Court believes will alleviate any potential legal prejudice GSK may suffer.

Procedural Background

Plaintiffs filed suit in Johnson County, Kansas. GSK removed the case to Federal District Court on September 19, 2002, on jurisdictional amount in controversy grounds. Plaintiffs filed a motion to remand (Doc. 9). Discovery was stayed pending resolution of the remand issue, which remains pending before this Court. Plaintiffs filed the instant motion to dismiss without prejudice on February 13, 2003. Plaintiffs' motion does not state the reason they are seeking dismissal. GSK responded that it does not object to dismissal provided that in the event plaintiffs later refile their lawsuit, they be required to do so in federal court to eliminate the possibility of plaintiffs "forum shopping" their case.

Discussion

Fed.R.Civ.P. 41(a)(2) governs voluntary dismissals after the opposing party has filed an answer or motion for summary judgment. Once a defendant has filed an answer, as was the case here, a plaintiff may voluntarily dismiss an action only upon order of the court. Rule 41(a)(2) "is designed `primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.'" Absent "legal prejudice" to the defendant, the district court normally should grant such a dismissal. The parameters of what constitutes "legal prejudice" are not completely clear, but factors the Tenth Circuit has held the district court should consider include 1) the opposing party's effort and expense in preparing for trial; 2) excessive delay and lack of due diligence on the part of the movant; 3) insufficient explanation of the need for a dismissal; and 4) the present stage of the litigation. Each factor does not have to favor the moving party for dismissal to be appropriate, nor does each factor need to favor the opposing party for denial of the motion to be proper. Neither the mere prospect of a second lawsuit against the defendant nor a tactical advantage to the plaintiff amounts to legal prejudice.

Rule 41(a)(2) also gives a court the discretion "to dismiss an action without prejudice `upon such terms and conditions as the court deems proper.'" "Conditions are designed to alleviate any prejudice a defendant might otherwise suffer upon refiling of an action." "The district court should impose only those conditions which actually will alleviate harm to the defendant." Terms and conditions typically should include at least the payment of taxable costs, but they also may include the payment of some or all of the other expenses and/or attorneys' fees or a requirement on the use of discovery or about the refiling of certain claims. The moving plaintiff "must be given a reasonable opportunity to withdraw his motion if he finds those conditions unacceptable" or too onerous.

The only alleged prejudice in this case is that GSK has spent considerable time, effort and expense with regard to removal of this action to federal court and in opposing plaintiffs' motion to remand; and if plaintiffs refile in state court, it will be forced to remove the lawsuit once again. As previously stated, however, prejudice does not automatically result to defendant from the filing of a second lawsuit.

The Tenth Circuit addressed this issue in American National Bank and Trust Company v. Bic Corporation. In that case, the court held that the district court did not abuse its discretion in refusing to attach to the voluntary dismissal of a removed case the condition that any refiling be in federal and not state court, absent showing that trial in state court would prejudice defendant. "Rule 41(a)(2) provides no guarantee of federal jurisdiction to protect a removed action. Thus, it is not an abuse of discretion for the district court to dismiss an action without prejudice even where the plaintiff's only motive is to recommence the action in state court."

Although the Court recognizes that it has the authority to impose a refiling condition, it will not do so in this case. GSK has not alleged that trial in state court would be prejudicial, save for the cost and inconvenience of another removal proceeding. While plaintiffs' national counsel has agreed to such a condition in a South Carolina removal case, it was only after plaintiffs' motion for remand was denied. In contrast, plaintiffs' motion to remand in this case remains pending. The Court declines to impose the requested jurisdictional condition under these circumstances.

The Court is mindful of GSK's effort and expense in opposing remand in these proceedings. Accordingly, having carefully reviewed the record, the Court finds that the weight of the factors favors a dismissal without prejudice upon the following conditions: 1) that upon refiling of their claims in state court, plaintiffs shall compensate GSK for those fees and expenses that are duplicative with regard to any removal and/or remand proceedings; 2) the amount of those fees and expenses to be paid will be determined at the time plaintiffs refile their claims in state court; 3) failure to abide by these conditions shall convert this dismissal without prejudice into a dismissal with prejudice.

Because the plaintiffs have the right to withdraw their motion to dismiss when the conditions imposed by the court seem too onerous, the Court gives plaintiffs until April 4, 2003, to withdraw their motion for dismissal without prejudice. If plaintiffs do not withdraw their motion, then this order granting their motion on the above conditions will take effect. If plaintiffs do withdraw their motion, this order will have no effect on the parties and the matters addressed herein.

IT IS SO ORDERED.