Opinion
Civ. No. 99-2945, SECTION "C" (1).
January 28, 2000.
ORDER AND REASONS
Plaintiff, James Kovacs, has moved the Court to dismiss this action without prejudice under Fed.R.Civ.P. 41(a)(2). For the reasons explained below, the Court GRANTS Plaintiffs motion with conditions.
I. Case History
Plaintiff originally filed his Jones Act complaint in the Civil District court for the Parish of Orleans. Defendants removed the case to federal court, the United States District Court for the Eastern District of Louisiana, Section "C." Plaintiff then moved to remand the case back to state court, arguing that he was a Jones Act seaman and thus had an unqualified right to choose the forum in which his case would be heard. Regardless of the merits of Plaintiffs argument in support of remand, he missed the statutorily imposed deadline for a motion to remand. As a result, this Court denied Plaintiffs motion, Rec. Doc. 14, and thus the case now remains before this Court.
28 U.S.C. § 1447 (c) provides that "[a] motion to remand the case on the basis of any defect other than the lack of subject matter jurisdiction must be made within thirty days after the filing of the notice of removal under § 1446(a)."
As this Court previously explained, this time limit is "a strict rule that leaves no discretion for a district court." Rec. Doc. 14, at 2.
Plaintiff thereafter filed a new but virtually identical case in the Civil District Court for the Parish of Orleans. Defendants forthrightly removed that case to this Court. That case, Civil Action 00-134, was originally allotted to Section "R" but was quickly transferred to this Section under Local Rule 3.1.1E as related to the instant case.
The complaint in the second case is identical except for omission of a fictional XYZ Insurance Company added as a defendant in the instant case.
Plaintiff now moves this Court to dismiss the first case without prejudice so that he can proceed with the second case.
Plaintiffs Memorandum in Support asks this Court to dismiss the instant case so that Plaintiff can proceed with the second case in state court. As explained above, Defendants have already removed that case to this Court.
The fact that Plaintiff has already filed a second case, however, does not affect Plaintiffs 41(a)(2) motion. The cases cited below generally hold that a motion to dismiss without prejudice is proper even where a plaintiffs only purpose is to refile in state court. This Court does not think the analysis differs merely because Plaintiff has already done so.
II. Analysis
A. Plaintiff's 41(a)(2) Motion to Dismiss Without Prejudice
In his Memorandum in Support, Plaintiff argues that the Court should grant his motion and allow him to proceed in state court because "the issue before the Court is analogous to cases [dismissed by federal courts] where defendant has filed a declaratory judgment action and there is a subsequently filed Jones Act action in state court action [sic]." Pl.'s Mem. Supp. Mtn. Dismiss.
While the Court observes that a case first instituted in state court and then removed to federal court is not analogous to two parallel suits proceeding in state and federal courts on the same set of operative facts, there is no need herein to consider Plaintiffs substantive legal argument on why he should not be required to proceed in federal court. His motion to dismiss under Rule 41(a)(2) succeeds on its own under the jurisprudence considering that rule.
While Plaintiffs requested dismissal circumvents the concept and intent of a Defendants' right to remove and the time limits to remand a removed action, the caselaw uniformly holds that a district court must be liberal in granting a 41(a)(2) motion to dismiss without prejudice. Even though a court has discretion, it will "[u]sually . . . grant a Rule 41(a)(2) motion providing for a dismissal without prejudice unless the defendant will 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 Rwy. Co., 385 F.2d 366, 368 (5th Cir. 1967)). See also 9 Charles A. Wright Arthur R. Miller, Federal Practice Procedure § 2364 (1995). In fact, as one court has stated, "[m]otions for voluntary dismissal have frequently been granted in cases removed by defendant to federal court, even where plaintiffs only motive is to recommence the action in state court." Miller v. Stewart, 43 F.R.D. 409, 412 (E.D. Ill. 1967).
The only question for this Court to consider is whether Defendants would suffer actual prejudice as a result of dismissal. In Phillips, after acknowledging that the mere prospect of a second lawsuit on the same facts does not justify denial of a 41(a)(2) motion, the Fifth Circuit held that clear legal prejudice would result where dismissal would strip a defendant of an absolute defense to the suit. 874 F.2d at 987. Similarly, "dismissal in order to reinstate the action in a forum that will apply a different body of substantive law clearly is disfavored." 9 Wright Miller § 2364. See, e.g., Manshack v. Southwestern Elec. Power Co., 915 F.2d 172, 174-75 (5th Cir. 1990) (finding that utility named as defendant in personal injury action did not suffer clear legal prejudice from Texas federal court's grant of plaintiffs ex parte motion for voluntary dismissal without prejudice presumably made to avoid the application of Louisiana law where same choice of law principles would apply in Texas state court).
In Phillips, the plaintiffs case was time-barred in Louisiana but would not have been time-barred in either Mississippi or Texas, the two states in which the plaintiff hoped to institute suit following a dismissal.
Both the Second and the Tenth Circuits have considered what constitutes prejudice to a defendant such that a court should deny a 41(a)(2) motion. The Second Circuit set forth five factors for a district court to consider: "[1] the plaintiffs diligence in bringing the motion; [2] any undue vexatiousness' on plaintiffs part; [3] the extent to which the suit has progressed, including the defendant's efforts and expense in preparation for trial; [4] the duplicative expense of relitigation; and [5] the adequacy of plaintiffs explanation for the need to dismiss." D'Alto v. Dahon California, Inc., 100 F.3d 281, 283 (2nd Cir. 1996) (quoting Zagano v. Fordham Univ., 900 F.2d 12, 14 (2nd Cir. 1990)). The Tenth Circuit set forth three somewhat analogous considerations: "[1] the [opposing party's] effort and expense of preparation for trial, [2] excessive delay and lack of diligence on the part of the [movant] in prosecuting the action, [and] [3] insufficient explanation for the need to take a dismissal." Clark v. Tansy, 13 F.3d 1407 (10th Cir. 1993) (citations omitted).
Taking all these factors into consideration, it is clear that Defendants will not suffer legal prejudice if this Court grants Plaintiffs dismissal. While there has been some activity in this case, it has not been so extensive or expensive such that this Court must retain jurisdiction in the face of Plaintiffs desire to dismiss the case. Plaintiff submitted his motion to dismiss only ten business days after this Court denied his motion to remand, and thus Plaintiff has been diligent in his prosecution of this action. The Court does not find any ill-will or "vexatiousness" in Plaintiffs motion to dismiss. Also, Plaintiff has provided a sufficient explanation for dismissal: he wishes to recommence the action in state court. Moreover, Defendants can be assured that the Civil District Court for the Parish of Orleans will apply the same substantive law regarding the Jones Act as would this Court. As a result, Defendants will not lose any defenses to suit he may have before this Court.
The case was removed to this Court on September 27, 1999. Thereafter, the only significant events on this case's docket sheet were the following: (1) answers by Defendants Chevron USA, Inc., M-I, and American Home Insurance Co.; (2) a notice of deposition of Plaintiff by defendant Chevron, a motion to compel, and Plaintiffs opposition to such discovery; (3) the submitted memoranda and the Court's resolution of Plaintiffs motion to remand; (4) a trial setting by the courtroom deputy; and (5) the current dispute over this motion to dismiss.
This is not the type of extensive activity that would prevent this Court from granting Plaintiffs motion to dismiss over Defendants' objections. Cf. Barber v. General Electric Co., 648 F.2d 1272, 1275 (10th Cir. 1981) ("In the face of extensive discovery, it would be an abuse of discretion to grant a voluntary dismissal . . ."). Proceeding with the case that will inevitably be filed in state court may be annoying for Defendants after spending four months litigating in this Court. However, as indicated above, the Court finds that dismissal of this case after the events that have already occurred will not prejudice Defendants.
Another Section of this Court recently considered a somewhat similar case and came to the same result. In Diaz v. EZ Serve Convenience Stores, Inc., Civ. Action 97-3936, Judge Clement denied plaintiffs motion to remand but then granted his motion to dismiss under Rule 41(a)(2). The court denied plaintiffs motion to remand because the court was not satisfied that plaintiffs claim was limited to less than $75,000, the jurisdictional minimum for diversity suits. See Diaz v. EZ Serve Convenience Stores, 1998 WL 101693 (E.D. La. Mar. 4, 1998). Later, the court granted plaintiffs motion to dismiss, observing that "the record does not disclose any prejudice to the defendant, other than the inconvenience and annoyance of a second lawsuit on the same subject matter." Diaz v. EZ Serve Convenience Stores, 1998 WL 151280 (E.D. La. Mar. 31, 1998).
B. Conditions on Dismissal
Because a court "must keep in mind [a] defendant's interests" when ruling on a 41(a)(2) motion, it may impose conditions on a dismissal without prejudice. Ritchey v. Ledoux, 164 F.R.D. 186, 189 (E.D. La. 1995). The Rule explicitly provides that a court may grant dismissal "upon such terms and conditions as the court deems proper." Fed.R.Civ.P. 41(a)(2) "Most often, the courts require plaintiffs to bear the attorneys' fees and costs of the dismissed defendant." Mortgage Guaranty Ins. Corp. v. Ruchard Carlyon Co., 904 F.2d 298, 300 (5th Cir. 1990) (citing LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976)).
The practice of imposing conditions on a voluntary dismissal without prejudice is long-standing and well-established. See, e.g., Therrien v. New England Telephone Telegraph Co., 102 F. Supp. 350, 351 (D.N.H. 1951).
Because Plaintiffs delay in seeking remand led to all the subsequent litigation in this Court, the Court finds that conditions on Plaintiffs requested dismissal would be proper in this case. Plaintiff shall pay all Defendants' fees and costs, including attorney's and filing fees, incurred in relation to litigation of this case in this Court. This amount shall include the fees and costs associated with (1) the removal of this case; (2) the opposition to Plaintiffs untimely motion to remand; (3) the motion to compel Plaintiff to respond to unanswered discovery (Rec. Doc. 19); and (4) the motion to dismiss resolved herein.
Because Defendants have not yet demonstrated the costs associated with the activities listed above, the Court must retain jurisdiction over the case until the Court can order that sum paid to Defendants by Plaintiff. After the Court orders that sum to be paid, the Court will then be able to dismiss the case without prejudice so that Plaintiff can proceed as he wishes.
III. Conclusion
The Court thus finds that Defendants will not suffer any actual legal prejudice from this Court's dismissal of this case but that it is proper to impose conditions on Plaintiffs request for dismissal without prejudice.
Accordingly,
IT IS ORDERED that Defendants submit a motion for fees and costs associated with (1) the removal of this case; (2) the opposition to Plaintiffs untimely motion to remand; (3) the motion to compel Plaintiff to respond to unanswered discovery (Rec. Doc. 19); and (4) the motion to dismiss resolved herein. The Court must retain jurisdiction over this case to resolve this matter. After the Court orders the amount due to Defendants from Plaintiff, Plaintiffs Motion to Dismiss Without Prejudice Pursuant to Rule 41(a)(2) will be granted and this case dismissed.
The second case will remain before this Court pending the Court's ruling on Plaintiffs motion to remand.
New Orleans, Louisiana, this 28th day of January, 2000.