Opinion
Civil Action No. 01-2484-KHV
June 11, 2002
MEMORANDUM AND ORDER
This matter comes before the Court on defendants' Motion To Amend Judgment (Doc. #19) filed March 21, 2002.
Background
On October 1, 2001, plaintiff filed a complaint against the University of Kansas Medical Center, the Kansas State Board of Regents, Deborah E. Powell and Donald F. Hagen. See Complaint (Doc. #1). As of February 19, 2002, a summons had not been executed for the Medical Center or the Board of Regents. Therefore, on February 19, 2002, the Court ordered plaintiff to show cause in writing why it should not dismiss the case, as to those defendants, for lack of prosecution. See Notice And Order To Show Cause (Doc. #9). On February 28, 2002, plaintiff filed a response which agreed to dismiss his complaint against the Medical Center and the Board of Regents. On March 1, 2002, plaintiff moved to dismiss his entire complaint. See Motion To Dismiss Without Prejudice (Doc. #14). As of March 15, 2002, defendants had not filed any opposition to plaintiff's response to the show cause order or plaintiff's motion to dismiss his complaint. The deadline for defendants' response to plaintiff's motion to dismiss was March 25, 2002. On March 15, 2002, the Court dismissed plaintiff's complaint without prejudice under the authority of Fed.R.Civ.P. 41(a)(2). See Order (Doc. #18). On March 21, 2002, defendants filed a motion under Fed.R.Civ.P. 59(e), arguing that the Court had not allowed their allotted time to respond to plaintiff's pleadings.
Legal Standard
A motion to alter or amend judgment under Rule 59(e) is essentially a motion for reconsideration. See Schweitzer-Reschke v. Avnet, Inc., 881 F. Supp. 530, 532 (D.Kan. 1995). The Court has discretion whether to grant or deny a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. W. Res., Inc., 929 F. Supp. 1349, 1360 (D.Kan. 1996).
Analysis
The local rules do not require an opposing party to reply to a party's response to an order to show cause, nor do they set a deadline by which any reply must be filed. Defendants cite no procedural or substantive irregularity with respect to that dismissal, and they apparently do not challenge the dismissal without prejudice of plaintiff's claims against the Medical Center and the Board of Regents pursuant to the show cause order. They argue that the Court clearly erred in dismissing without prejudice plaintiff's claim against the remaining defendants, Deborah E. Powell and Donald F. Hagen. The Court agrees that it did not allow defendants sufficient time to respond to plaintiff's motion to dismiss without prejudice. The Court will therefore consider defendants' arguments on the merits.
Under Fed.R.Civ.Pro. 41(a), after the opposing side answers, a party may voluntarily dismiss his or her claim:
(2) By Order of Court. Except as provided in 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. If a counter claim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
Dismissal under Rule 41(a)(2) is within the sound discretion of the Court. See Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 357 (10th Cir. 1996). In exercising that discretion, the Court must consider the purposes of Rule 41(a)(2). The rule is designed primarily to prevent voluntary dismissals which unfairly affect the other side, and to allow the Court to impose curative conditions. See id. (citing 9 C. Wright and A. Miller, Federal Practice and Procedure § 2364 at 279 (2d ed. 1994)). When considering a motion to dismiss without prejudice, "the important aspect is whether the opposing party will suffer prejudice in the light of the valid interests of the parties." Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993) (further quotations omitted).
The Tenth Circuit has set out factors for courts to consider in determining whether granting a motion to dismiss without prejudice will prejudice the opposing party. These factors include: "the opposing party's effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the movant in prosecuting the action, and insufficient explanation for the need to take a dismissal." Id. (citations omitted). A district court may also consider the present stage of litigation. See Phillips USA, Inc., 77 F.3d at 358.
Defendants contend that they have spent significant resources defending this action because they have completed Rule 26 disclosures and submitted a report of the parties' planning meeting. In addition, defendants argue that plaintiff's motion to dismiss was not proper under D. Kan. Rule 7.1 because it was not accompanied by a brief or memorandum justifying dismissal. Defendants seek "conditions on [plaintiff's] dismissal, including the reimbursement of defendants' attorney's fees, or requiring plaintiff to justify dismissal at this late date, as is required by D. Kan. Rule 7.1." Memorandum In Support Of Defendants' Motion To Amend Judgment (Doc. #20) filed March 21, 2002.
On March 28, 2002, plaintiff filed his opposition to defendants' motion, along with a memorandum in support of his previous motion to dismiss. In the latter, plaintiff asserts that difficulties with his attorney precipitated his motion to dismiss. After hiring counsel, plaintiff had been unable to obtain a written contract regarding the terms of their relationship. On February 15, 2002, counsel suggested a change in the terms of their relationship and plaintiff could no longer afford his fees. Plaintiff also learned that without explanation to plaintiff, counsel had not served the Medical Center or the Board of Regents. Plaintiff requested that counsel withdraw, but he did not do so until March 4, 2002. During this time, plaintiff realized that due to the difficulties with his attorney, his case was likely in jeopardy. Plaintiff did not want to prolong the matter or cause defendants undue expense, so he sought to dismiss his case.
Defendants did not reply to plaintiff's opposition. Any such reply was due April 11, 2002.
Plaintiff's memorandum fulfills the requirements of D. Kan. Rule 7.1, although belatedly, by offering justification for his motion to dismiss. Defendants' request that plaintiff either justify his actions or pay attorney's fees has therefore been satisfied. Further conditions on plaintiff's dismissal are not necessary. Defendants do not provide concrete figures to support their contention that they spent significant resources defending against this action and they have not filed dispositive motions. While plaintiff has exhibited delay and lack of diligence, his memorandum sufficiently explains the circumstances which caused the delay and the Court has no reason to believe that he has acted in bad faith.
IT IS THEREFORE ORDERED that defendants' Motion To Amend Judgment (Doc. #19) filed March 21, 2002 be and hereby is OVERRULED as moot.