Opinion
CIVIL ACTION No. 03-2373-CM
December 10, 2003
MEMORANDUM AND ORDER
This matter is before the court on Plaintiff's Motion to Dismiss Count II ( 42 U.S.C. § 1983) Without Prejudice and Remand (Doc. 4). Plaintiff filed suit against defendant on July 2, 2003, in the District Court of Wyandotte County, Kansas, asserting two state tort claims and a claim under 42 U.S.C. § 1983. Defendant removed the action to this court, pursuant to 28 U.S.C. § 1441(b), based upon the § 1983 claim over which the court holds original jurisdiction. Plaintiff requests that the court dismiss her § 1983 claim and remand the two remaining state-law tort claims to the District Court of Wyandotte County, Kansas. For the reasons set forth below, the court grants plaintiff's motion.
1. Motion to Dismiss Without Prejudice
Once an answer to a complaint has been filed, a plaintiff must seek dismissal of an action by order of the court. Fed.R.Civ.P. 41(a)(2). A dismissal by court order can be with or without prejudice. "The purpose of the rule is `primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.'" County of Santa Fe, N.M. v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1047 (10th Cir. 2002) (quoting Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993)). The decision whether to grant a plaintiff's motion for voluntary dismissal is left to the discretion of the court, although the court should normally grant the motion unless the defendant will suffer "legal prejudice." Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). The Tenth Circuit has held that the court should consider the following factors when determining whether a defendant would suffer legal prejudice as a result of dismissal without prejudice: "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." Id. (citing Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996)). Nevertheless, this list is not exclusive, and the court may consider any other factor necessary to avoid visiting injustice upon the defendant. Id.
Defendant opposes plaintiff's motion to the court on the grounds that the court should dismiss with prejudice plaintiff's § 1983 claim. Defendant does not contend that it will suffer legal prejudice under any of the Tenth Circuit's conventional factors. Instead, defendant asserts that if the court does not dismiss with prejudice then plaintiff could re-file her § 1983 claim once the action is remanded to state court. As a result, defendant argues, it will be forced to again remove the action to federal court and defend against the claim.
Resolution of a legal issue in state court rather than federal court does not result in legal prejudice. Amn. Nat'l Bank and Trust Co. of Sapulpa v. Bic. Corp., 931 F.2d 1411, 1412 (10th Cir. 1991). Even if plaintiff's intention in dismissing the action is to gain tactical advantage, "it is not an abuse of discretion for the district court to dismiss an action without prejudice." Id. at 1413. The court therefore concludes that defendant's argument that plaintiff may re-file her § 1983 claim in state court is not an accepted ground to oppose dismissal without prejudice. Moreover, considering the early stage of this litigation, the court concludes that there are no other grounds upon which defendant would suffer legal prejudice. Plaintiff's motion for dismissal of her § 1983 claim without prejudice is granted.
2. Motion to Remand 28 U.S.C. § 1367(c)(3) provides that a district court may decline to exercise supplemental jurisdiction over a claim once it has dismissed all claims over which it has original jurisdiction. "Generally, when a district court dismisses the federal claims, leaving only supplemented state claims, `the most common response . . . has been to dismiss the state claim or claims without prejudice.'" United States v. Botefuhr, 309 F.3d 1263, 1273 (10th Cir. 2002) (quoting Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995)). In particular, cases in which there is a "relative lack of pretrial proceedings-including a total absence of discovery," do not favor retaining jurisdiction. Tonkovich v. Kan. Bd. of Regents, Univ. of Kansas, 254 F.3d 941, 945 (10th Cir. 2001).
In this order, the court has dismissed the sole federal claim, leaving only state law claims. Moreover, there has been no discovery and very little pretrial proceedings in this matter. The court, therefore, declines to exercise supplemental jurisdiction over the remaining state law claims. Plaintiff's motion to remand to the District Court of Wyandotte County, Kansas is granted.
ORDER
IT IS THEREFORE ORDERED that Plaintiff's Motion to Dismiss Count II ( 42 U.S.C. § 1983) Without Prejudice and Remand (Doc. 4) is granted.