Opinion
Civil Action No. 01-3755, Section "R" (4)
April 11, 2002
ORDER AND REASONS
Before the Court is the motion of plaintiff, John Brown, to dismiss this action without prejudice. Defendants, Schlumberger Technology Corporation and Travelers Indemnity Company, oppose the motion.
This case arises out of an October 3, 2001 automobile collision between plaintiff and Earl D. Johnson ("Johnson"), the driver of an automobile owned by Schlumberger and insured by Travelers. On December 14, 2001, plaintiff sued Schlumberger and Travelers in this Court and invoked the Court's diversity jurisdiction. On March 28, 2002, plaintiff acquired new counsel. Plaintiff has filed an affidavit stating that he did not know where his former counsel had filed suit. (Pl.'s Mot. to Dismiss, Ex. A.) He states that he wishes to join Johnson, a Louisiana resident, as a necessary party in the suit. Plaintiff asserts that naming Johnson as a defendant would destroy diversity and divest the Court of jurisdiction over the case. Accordingly, plaintiff moves to dismiss the federal action without prejudice so that he may proceed against all three defendants in state court. Defendants oppose the motion and contend that plaintiff is forum shopping.
Federal Rule of Civil Procedure 41(a)(2) governs plaintiff's motion to dismiss without prejudice. The district court has discretion to grant a motion under Rule 41(a)(2), subject to review on appeal for abuse of that discretion. See Manshack v. Southwestern Elec. Power Co., 915 F.2d 172, 174 (5th Cir. 1990); Reed v. Falcon Drilling Co., 2000 WL 222852, at *1 (E.D. La. 2000). A court will usually grant a Rule 41(a) (2) motion to dismiss without prejudice, unless there is evidence that the defendant will suffer clear legal prejudice as a result. See Phillips v. Illinois Central Gulf R.R., 874 F.2d 984, 986 (5th Cir. 1989); Scioneaux v. Monsanto Co., 2001 WL 1104632, at *1 (E.D. La. 2001); Reed, 2000 WL 222852, at *1. The Fifth Circuit has held that the mere prospect of a second lawsuit or the fact that plaintiff may obtain some tactical advantage is insufficient to establish legal prejudice. See Manshack, 915 F.2d at 174; Templeton v. Nedlloyd Lines, 901 F.2d 1273, 1276 (5th Cir. 1990) (citing Lecompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976)). Rather, the Court should consider the stage of the litigation at which plaintiff files the motion to dismiss. See Hartford Accident Indemnity Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990) ("Important in assessing prejudice is the stage at which the motion to dismiss is made."). Thus, in Templeton, the Fifth Circuit found the district court did not abuse its discretion in granting plaintiff's motion to dismiss without prejudice, even though defendant would lose its choice of forum, when the suit was still in the pretrial stages. 901 F.2d at 1275-1276. But see Davis v. Huskipower Outdoor Equipment Corp., 936 F.2d 193, 199 (5th Cir. 1991) (finding that district court did not abuse discretion in denying plaintiffs' motion to dismiss after parties filed numerous pleadings and memoranda, attended conferences and magistrate judge issued comprehensive recommendation adverse to plaintiffs); Hartford Accident Indemnity Co., 903 F.2d at 360 (affirming denial of motion to dismiss when several hearings had been held, one defendant had been dismissed on summary judgment, and parties had undertaken significant discovery).
Rule 41(a)(2) provides:
By Order of Court. Except as provided by paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper . . . Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
Defendants contend that the motion to dismiss should be denied to prevent the plaintiff from engaging in impermissible forum shopping. Courts in this district have held that assertions of forum shopping alone are insufficient to establish clear legal prejudice. See Romero v. Universal Ogden Services, 1997 WL 639011, at *2 (E.D. La. 1997) (citing to Fleming v. Joy Finance Co., 1995 WL 739877 (E.D. La. 1995). In both Romero and Fleming, the courts held that in the absence of any additional evidence of clear legal prejudice, allegations of forum shopping were insufficient grounds on which to deny plaintiff's motion to dismiss. Id.
Defendants have not shown that granting plaintiff's motion will cause them undue prejudice. Indeed, this case is still in the early stages of litigation. The complaint was filed on December 14, 2001. Defendants answered the complaint on March 5, 2002. The preliminary conference has not been held yet and no deadlines have been set. The parties have not engaged in discovery. Indeed, it appears from the record that the defendants' investment in this case amounts to little more than filing answers to the complaint and preparing for a preliminary conference set for April 11, 2001. Based on these facts, the Court finds that defendants have failed to show that they will suffer clear legal prejudice by a dismissal without prejudice of this case. See, e.g., Reed, 2000 WL 222852, at *1 (finding that defendants failed to show prejudice when they merely filed answers to the complaint and the intervener's complaint, and participated in a brief telephone conference); Haley v. Offshore Petroleum Divers, Inc., 1993 WL 386326, at *1 (E.D. La. Sept. 17, 1993).
For the foregoing reasons, the Court GRANTS plaintiff's motion and hereby DISMISSES this case WITHOUT PREJUDICE.