Opinion
CIVIL ACTION NO. 3:00-CV-2336-G.
February 7, 2001.
MEMORANDUM ORDER
Before the court is the motion of the plaintiff, David Nelson ("Nelson"), for voluntary dismissal. For the reasons stated below, the motion is conditionally granted.
FED. R. Civ. P. 41(a)(2) provides that where, as in the instant case, an adverse party has filed an answer or a motion for summary judgment, "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." Rule 41 is expressly subject to FED. R. Civ. P. 23(e), which requires court approval of any voluntary dismissal of a class action.
The defendants urge that, should the court grant Nelson's motion to dismiss, such dismissal be subject to the condition that he not file or prosecute a similar action based upon the same controversy in any other state or federal court. See Defendants' Response to Plaintiff's Motion for Voluntary Dismissal ("Response") at 3. In support of this request, the defendants allege that Nelson has repeatedly failed to provide adequate assurances that he did not seek dismissal for improper purposes, such as forum shopping or an effort to defeat federal jurisdiction. See id. at 2. Nelson replies that he has not filed — and has no intent of filing — a similar class action against the defendants named in the case at bar. See Plaintiff's Reply to Defendants Mission and Azteca's Response to Plaintiff's Motion for Voluntary Dismissal ("Reply") at 2. Nelson's counsel states that he has conversed with counsel for all the defendants, and that the defendants "have Nelson's assurance . . . that he will not bring a similar class action against these defendants. . . ." Id. at 3.
The court shares the defendants' concern that Nelson may, at a later date, file or prosecute a similar action based upon the same controversy in another court. Accordingly, Nelson's motion for voluntary dismissal is GRANTED "on the condition that he not file in any court in the United States a duplicative class action" based on the controversy at issue here. In re Phillips Petroleum Securities Litigation, 109 F.R.D. 602, 609 (Del. 1986).
The court notes that, because Nelson states that he has no intent of pursuing a similar case against these defendants, he will not be prejudiced in any way by the condition attached to this grant of his motion.