Opinion
CIVIL ACTION NO. 3:02-CV-2283-G
January 6, 2004
MEMORANDUM ORDER
Before the court are the (1) motion of the defendants for summary judgment and (2) the motion of the plaintiff for nonsuit. For the following reasons, the plaintiff's motion for nonsuit is granted, and the defendants' motion for summary judgment is denied as moot.
The Federal Rules of Civil Procedure do not include the term "nonsuit." Rather, "non-suit" is a procedural term used in the Texas state courts. See TEX. R. CIV. P. 162. The court construes Bhullar's motion for nonsuit as a motion for voluntary dismissal under Federal Rule of Civil Procedure 41.
I. BACKGROUND
The defendant Sonoco Products Company ("Sonoco"), a South Carolina corporation, is a manufacturer and packing company with its principal place of business in Carrollton, Texas. Original Complaint ("Complaint") at 1. From approximately February 7, 1985 through April 22, 2002, Sonoco employed the plaintiff Harchan "Tony" Bhullar ("Bhullar"), a native of India. Id. at 1, 3. Sonoco last employed Bhullar as a winder operator. Id. at 1. The defendant Scott Wyatt ("Wyatt") was Bhullar's former production manager at Sonoco's Carrollton plant. Id. at 2. The defendant Terry Bane ("Bane") was the plant manager of the Carrollton plant during Bhullar's employment. Id. The defendant Robert L. Morehouse ("Morehouse") was Sonoco's senior regional human resources manager. Id.On about August 18, 2001, Bhullar reported to Sonoco that Romi Chahal, another Sonoco employee, had made a death threat to Bhullar and his family outside of the workplace. Id. at 3. Wyatt and Bane investigated Bhullar's allegation. Id. Wyatt and Bane could not determine if threats had been made, but they did conclude that "communications had existed between the two parties" and that a caste system existed. Id. at 3-4. Sonoco, through Wyatt and Bane, then issued a memorandum to Bhullar, Sonoco employee Kulwinder "Billy" Singh ("Singh"), and others which stated that "any evidence of retaliatory actions or further harassment by any involved party could warrant immediate termination[.]" Id. at 4.
On or about January 5, 2002, Sonoco alleged that Bhullar "engaged in threatening behavior towards another Sonoco employee." Id. As a result, Sonoco suspended Bhullar without pay for three days. Id. Bhullar maintains that all interaction, if any, between himself and other Sonoco employees occurred in Punjabi, Bhullar's native language. Id.
On or about February 7, 2002, Bane, Morehouse, Bhullar, and Singh met to discuss the conflict between Bhullar and Singh. Id. Morehouse and/or Bane warned Bhullar and Singh that "if there were any other clashes . . ., they would both be terminated." Id. at 5.
On or about April 17, 2002, Singh reported to Sonoco that Bhullar "had approached him in a threatening manner." Id. After investigating the incident, Sonoco terminated Bhullar's employment and suspended Singh for three days. Id. Bhullar subsequently requested reinstatement of his employment, but Sonoco denied his request. Id.
On July 22, 2002, Bhullar filed a charge of discrimination with the Equal Employment Opportunity Commission and the Texas Commission on Human Rights. See Defendant's Appendix in Support of Their Motion for Summary Judgment ("Appendix") at 118. In that charge, Bhullar averred that Sonoco discriminated against him due to his race, East Indian/Asian, and his age, 48. Id.
On October 18, 2002, Bhullar filed this case. His complaint alleges the following causes of action: discrimination on the basis of national origin and age, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; retaliation and hostile work environment, in violation of Title VII and the ADEA; and Texas common law claims of intentional infliction of emotional distress and slander. See generally Complaint.
On December 31, 2002, the defendants timely filed their original answer. On September 30, 2003, the defendants amended that answer.
On August 12, 2003, the parties were unable to resolve the dispute through court-ordered mediation. Defendants' Response to Plaintiff's Motion for Nonsuit ("Response") at 1.
On September 26, 2003, Sonoco, Wyatt, Bane, and Morehouse filed a motion for summary judgment on all of Bhullar's claims against them. In support of their motion for summary judgment, the defendants filed a brief and a 128-page appendix. The appendix included excerpts from Bhullar's deposition, certified court records, documents from Sonoco's personnel files, Bhullar's charge of discrimination, correspondence from Bhullar's physician, and three sworn declarations. See generally Appendix.
Bhullar did not respond to the motion for summary judgment. Instead, on October 23, 2003, Bhullar filed a motion for nonsuit, which the court construes as a motion for voluntary dismissal without prejudice. See note 1, above. In his motion, Bhullar stated the following:
Plaintiff no longer desires to pursue his claims against Defendants and the issues in controversy in this action, and accordingly, moves the Court to dismiss this suit, with costs taxed against the party incurring same.
Wherefore, Plaintiff Harcharn "Tony" Bhullar requests that this Court dismiss this action.
Motion for Nonsuit at 1.
The defendants oppose Bhullar's motion for nonsuit and seek attorney's fees based on Bhullar's "vexatious" lawsuit. Response at 2. Bhullar has neither served any written discovery on the defendants nor deposed any of them. Id. at 1.
II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving parties are entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movants make such a showing by informing the court of the basis of their motion and by identifying the portions of the record which reveal there are no genuine material fact issues. See Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). Once the movants make this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Id. at 323-24. To carry this burden, the opponent must do more than simply show some metaphysical doubt as to the material facts. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, he must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249. All of the evidence must be viewed, however, in a light most favorable to the motion's opponent. Id. at 255 (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)).
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
Bhullar did not respond to the defendants' motion for summary judgment. The defendants, however, are not automatically entitled to summary judgment as a result of Bhullar's failure to respond. See John p. State of Louisiana (Board of Trustees for State Colleges and Universities), 757 F.2d 698, 707 (5th Cir. 1985). If the movants fail to discharge their initial burden, the nonmovant need not respond at all. Id. at 708. However, if the movants have met their burden under Rule 56, "the nonmovant cannot survive the motion by resting on the mere allegations of [his] pleadings." Isquith for and on behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988). Although the court is not permitted to enter a "default" summary judgment by virtue of Bhullar's failure to respond, it may accept as undisputed the facts so listed by the defendants in their support of their motion for summary judgment. Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988).
Summary judgment is appropriate if the nonmovant fails to set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir.), cert. denied, 506 U.S. 825 (1992); see also Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (once movants for summary judgment meets burden imposed by Rule 56, nonmovant must go beyond pleadings and designate specific facts showing that there is a genuine issue for trial).
B. Motion for Voluntary Dismissal Filed Subsequent to Motion for Summary Judgment
Under Federal Rule of Civil Procedure 41(a)(1)(i), "an action may be dismissed by the plaintiff without order of court . . . by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment[.]" Id. (emphasis added); see also League of United Latin American Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 843 (5th Cir. 1993), cert. denied, 510 U.S. 1071 (1994); Parker v. Freightliner Corporation, 940 F.2d 1019, 1022-23 (7th Cir. 1991). The defendants answered Bhullar's complaint and filed their motion for summary judgment before Bhullar filed his motion for nonsuit. Thus, the court must review Bhullar's motion under Federal Rule of Civil Procedure 41(a)(2) ("Rule 41(a)(2)").
Rule 41(a)(2) provides, in pertinent part, that:
[e]xcept 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. . . . Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.Id.
Thus, Bhullar may voluntarily dismiss this case only by an order setting forth terms and conditions approved by this court. See id. His right to dismissal under Rule 41(a)(2) "is not absolute." LeCompte v. Mister Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976). In the Fifth Circuit, "as a general rule, motions for voluntary dismissal [under Rule 41(a)(2)] should be freely granted unless the non-moving party will suffer some plain legal prejudice other than the mere prospect of a second lawsuit." Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002).
The decision to dismiss an action under Rule 41(a)(2) rests within the sound discretion of the district court. Schwarz v. Folloder, 767 F.2d 125, 129 (5th Cir. 1985) (citing La-Tex Supply Company v. Fruehauf Trailer Division, 444 F.2d 1366, 1368 (5th Cir.), cert. denied, 404 U.S. 942 (1971)). In evaluating a Rule 41(a)(2) motion, the Court of Appeals has given the following guidance:
[T]he district court should first ask whether an unconditional dismissal will cause the non-movant to suffer plain legal prejudice. If not, it should generally, absent some evidence of abuse by the movant, grant the motion. If the district court concludes that granting the motion unconditionally will cause plain legal prejudice, it has two options, it can deny the motion outright or it can craft conditions that will cure the prejudice.Elbaor, 279 F.3d at 317-18.
We note that the fact that additional expense will be incurred in relitigating issues in another forum will not generally support a finding of "plain legal prejudice" and denial of a Rule 41(a)(2) motion to dismiss. . . .
The defendant must demonstrate that the dismissal will cause it to "suffer clear legal prejudice, other than the prospect of a subsequent suit on the same facts." Phillips v. Illinois Central Gulf Railroad, 874 F.2d 984, 986 (5th Cir. 1989) (citing Durham v. Florida East Coast Railway Company, 385 F.2d 366, 368 (5th Cir. 1967)). "That plaintiff may obtain some tactical advantage over the defendant in future litigation is not ordinarily a bar to dismissal." Ikospentakis v. Thalassic Steamship Agency, 915 F.2d 176, 178 (5th Cir. 1990).
The district court may consider a number of factors in determining whether to grant a Rule 41(a)(2) motion. Radiant Technology Corporation v. Electrovert USA Corporation, 122 F.R.D. 201, 203-04 (N.D. Tex. 1988). Outright denial of the motion "should be reserved only for those cases where the defendant demonstrates: (1) that dismissal will preclude the court from deciding a pending case or claim-dispositive motion; or (2) that there is an objectively reasonable basis for requesting that the merits of the action be resolved in this forum in order to avoid legal prejudice." Id. at 203. The motion should also be denied where "a plaintiff seeks to circumvent an expected adverse result." Id. However, "[a]bsent one of the foregoing factors, courts should not require that a plaintiff continue to prosecute an action that [he] no longer desires to pursue." Id. at 204 (citing LeCompte, 528 F.2d at 604).
Applying these principles to the instant case, the court notes that a dispositive motion was pending in this case when Bhullar moved for voluntary dismissal, and that the defendants have alleged that Bhullar seeks voluntary dismissal because he expects an adverse result. See Response at 3. The defendants have not, however, shown that they will suffer legal harm if Bhullar's claims are not resolved at this time and in this forum. The law is clear that "the mere prospect of a second lawsuit on the same facts is not sufficiently prejudicial to the defendant to justify denial of a Rule 41(a)(2) motion to dismiss." Phillips, 874 F.2d at 987.
After granting a Rule 41(a)(2) motion, a court typically requires a plaintiff to bear the defendants' attorney's fees and costs. Mortgage Guaranty Insurance Corporation v. Richard Carlyon Company, 904 F.2d 298, 300 (5th Cir. 1990) (citing LeCompte, 528 F.2d at 603). Here, the court finds that the defendants are entitled to recover from Bhullar their just costs and actual expenses, including attorney fees, incurred as a result of defending this lawsuit. Counsel for the defendants shall file, within fifteen days of this date, an affidavit setting forth the amount of such costs and expenses, including attorney fees. The court will then enter judgment on Bhullar's motion for voluntary dismissal as follows: if Bhullar pays the amount claimed by the defendants as costs and expenses (including attorney fees) within thirty days, the dismissal will be without prejudice; if Bhullar fails to reimburse the defendants for those costs and expenses (including attorney fees) within thirty days, the dismissal will be with prejudice. In this manner, the defendants are protected from any harm caused by Bhullar's decision to discontinue this case, for if Bhullar refiles these claims at a later date but has made the defendants whole for the costs and expenses (including attorney fees) incurred in this case, the defendants will be no worse off by virtue of having had to defend this case. On the other hand, if Bhullar refiles these claims at a later date but has not made the defendants whole for the costs and expenses (including attorney fees) incurred in this case, the judgment in this case will bar that subsequent suit as surely as if this case had gone to trial and the defendants had prevailed on the merits.