Opinion
Case No. 02-4152-JAR
February 5, 2003
MEMORANDUM AND ORDER DENYING REMAND AND GRANTING PLAINTIFF'S MOTION TO DISMISS
Plaintiff instituted this action in the District Court of Washington County, Kansas, stating claims of malicious prosecution, conspiracy, deprivation of equal protection and defamation. Defendants filed a Notice of Removal to this Court on October 9, 2002, claiming that this Court has diversity jurisdiction because Plaintiff is a resident of the State of Nebraska and Defendants are residents of the State of Kansas. (Doc. 1) Defendants further claimed that by Plaintiff withdrawing his notice of claim under K.S.A. § 12-105b, no state law claims remain, such that all of Plaintiff's claims are federal claims, over which this Court has jurisdiction by virtue of 28 U.S.C. § 1331. On December 10, 2002, Plaintiff filed, pro se, an "Objection to Removal, Motion for Hearing on Case Venue and Jurisdiction. (Doc. 9); and on January 6, 2003, Plaintiff filed a Motion to Withdraw or in the Alternative Dismiss Without Prejudice (Doc. 10). On January 27, Plaintiff filed a Motion to Dismiss Without Prejudice or in the Alternative Withdraw (Doc. 19); a Motion for Change of Venue (Doc. 10); a Motion for a Change of Jurisdiction (Doc. 18); and a Motion for Hearing on issues of venue, jurisdiction, conflicts of interest between Defendant and his representative, the mailing address of Plaintiff, and the Motion to Dismiss or Withdraw without prejudice (Doc. 20). In this Motion for Hearing, Plaintiff urges this Court to rule on his pending motions and asserts that he "will not respond nor comply to your orders, demands, or request" until a hearing is conducted. (Doc. 20 at ¶ 19). He demands that this court either dismiss the case without prejudice or hold a hearing to rule on his motions. (Doc. 20 at ¶ 19).
Objection to Removal
Plaintiff objects to this case being removed to this Court on the basis, inter alia, that ". . . Plaintiff finds NO Federal law in the original petition cited as the bases of his claim . . ." and "Plaintiff now claims a residence in Kansas."
The Court finds that Plaintiff's complaint states in pertinent part that he ". . . is a domiciliary resident of Gage County, NE" with principal place of residence in Beatrice, Nebraska, and that the defendants all reside in Washington County, Kansas. Plaintiff prays for actual, punitive and/or compensatory damages in a "fair and reasonable" but unspecified amount. Plaintiff's complaint includes claims of violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and violations of the First Amendment of the United States Constitution, as well as violations of the Kansas Constitution.
Based on these averments and claims, the Court finds that it has subject matter jurisdiction. Plaintiff's claims for constitutional violations confer subject matter jurisdiction on the Court, because this Court has original jurisdiction over all civil actions arising under the constitution, laws or treaties of the United States pursuant to 28 U.S.C. § 1331; and removal is therefore proper under 28 U.S.C. § 1441. A civil action is removable only if a plaintiff could have originally brought the action in federal court.
The Court cannot find, on this record, that it has diversity jurisdiction. There is no dispute that at the time Plaintiff filed his complaint in state court, there was diversity of parties. Plaintiff's complaint states that he is a resident of Nebraska and that all defendants are residents of Kansas. Although Plaintiff has now filed a motion objecting to removal, which states that he is now a resident of Kansas, as the Tenth Circuit noted in Laughlin v. Kmart Corp., jurisdiction is determined at the time of the notice of removal, not at some later time. But, with respect to the amount in controversy, because Plaintiff does not specify the amount in controversy in his complaint, the Court must consider the allegations in the notice of removal, since the allegations in the complaint are not dispositive, and since the burden is on the party requesting removal to demonstrate that the court has jurisdiction. Defendants do not address the amount in controversy in their Notice of Removal. Thus, the Court cannot determine the amount in controversy at the time of the notice of removal, as required.
Id.
Laughlin, 50 F.3d at 873 (citing Lonnquist v. J.C. Penney Co., 421 F.2d 597, 599 (10th Cir. 1970)).
Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.), cert. denied 516 U.S. 863 (1995).
Id.
Motion to Withdraw or Dismiss Without Prejudice
Plaintiff further moves to "withdraw" this action, or dismiss this action without prejudice, "[b]ecause of the emotional stress unwarrantedly placed on me I can not deal with this at this time and need time to recover for the stress of the criminal trial that I was acquitted of all charges." (Doc. 19 at ¶ 2). On January 6, 2003, Plaintiff filed a Request for A Hearing on The Motion to Withdraw or In the Alternative Dismiss Without Prejudice (Doc. 11). He also filed a Motion for Hearing on January 27, 2003 on the issue (Doc. 20).
Plaintiff has refused to participate in the prosecution of this case. As set out in a Scheduling Order (Doc. 12) entered by Magistrate Judge Humphreys, Plaintiff did not appear, in person or through counsel at a planning conference, nor at the scheduling conference held by Judge Humphreys on January 6, 2003, the same day that he filed a motion for hearing on his motion to withdraw or dismiss this case. Plaintiff notified defense counsel by voice mail message that he preferred to have no direct contact with defense counsel. Plaintiff had also refused to participate in the planning meeting preceding the scheduling conference. Nor did plaintiff appear at a planning conference.
Defendants filed a response (Doc. 13) to Plaintiff's motion to withdraw or dismiss the action. Defendants state that Plaintiff is unwilling to stipulate to dismissal with prejudice, and that any dismissal should be in accordance with Fed.R.Civ.P. 41(a)(2), which does not allow for dismissal on plaintiff's motion absent an order of the court and upon such terms and conditions as the court deems proper. Generally, a court should grant a voluntary dismissal unless it finds that such a dismissal would cause "legal prejudice" to the defendant. To determine "legal prejudice," the Tenth Circuit employs factors that include "the opposing party's effort and expense in preparing for trial; excessive delay and lack of diligence on the part of the movant; insufficient explanation of the need for a dismissal; and the present stage of the litigation." Conditions should be imposed only to alleviate any prejudice that a defendant would suffer upon refiling the action.
E.g., McCoy v. Whirlpool Corp., 204 F.R.D. 471, 472 (D.Kan. 2001).
Id. at 473 (quoting Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997)).
McCoy at 472-73; Gonzales v. City of Topeka, 206 F.R.D. 280, 282-83 (D.Kan. 2001). The rule is designed to "prevent voluntary dismissals which unfairly affect the other side." Id. at 283 (quoting Nunez v. IBP, Inc., 163 F.R.D. 356, 358 (D.Kan. 1995) (quoting Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993))).
Defendants ask the Court to impose two conditions on a dismissal without prejudice: (1) that if the matter is refiled, it be filed in federal district court and be reassigned to the same district judge; and (2) that as a condition of refiling, Plaintiff be required to reimburse Defendants' attorneys fees expended in the preparation of the planning meeting report and in Defendants' participation in the Scheduling Conference, an expense of $115 per hour for two hours, for a total of $230. Defendants will suffer prejudice by the case being dismissed due to the expense and effort associated with defending this action.
See U.S. ex rel Stone v. Rockwell Intern. Corp., 282 F.3d 787, 810 (10th Cir. 2002) (quoting Marlow v. Winston Strawn, 19 F.3d 300, 303 (7th Cir. 1994)) (explaining that usually a court imposes as a term that the plaintiff pay the defendant's expenses incurred in defending the suit, which generally includes reasonable attorneys fees).
The Court finds that the defendant will not suffer prejudice if the case is dismissed without prejudice subject to the condition that Plaintiff be required to reimburse Defendants' attorneys fees expended in the preparation of the planning meeting report and in Defendants' participation in the Scheduling Conference. Imposing this condition on Plaintiff is reasonable and appropriate because this time is duplicative for the defendants if the suit is refiled.
McCoy, 204 F.R.D. at 473, 475.
However, the Court does not find that defendant will suffer prejudice if the case is refiled in state court. The mere fact that a plaintiff may refile the action in state court and gain some tactical advantage does not suffice to deny a voluntary motion to dismiss.
American Nat'l Bank Trust Co. v. BIC Corp., 931 F.2d 1411, 1412 (10th Cir. 1991).
IT IS THEREFORE ORDERED that Plaintiff's Objection to Removal is Overruled and DENIED.
IT IS FURTHER ORDERED that Plaintiff's Motion to Dismiss Without Prejudice is GRANTED.
IT IS FURTHER ORDERED, that Plaintiff refiling this matter is subject to the condition that Plaintiff be required to reimburse Defendants' attorneys fees expended in the preparation of the planning meeting report and in Defendants' participation in the Scheduling Conference, an expense of $115 per hour for two hours, for a total of $230.
IT IS SO ORDERED.