Tweed v. Michigan Lumber Company

Full title: BARBARA TWEED, Plaintiff, v. MICHIGAN LUMBER COMPANY, a Michigan…

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Oct 31, 2005

Case No. 05-70822 (E.D. Mich. Oct. 31, 2005)

Opinion

Case No. 05-70822.

October 31, 2005

AMENDED ORDER DISMISSING ACTION WITHOUT PREJUDICE

GEORGE STEEH, District Judge

It has come to the court's attention that its order dismissing this action without prejudice, entered October 18, 2005, contained a clerical error which is hereby corrected under Fed.R.Civ.P. 60(a). That order indicated there had been no response to plaintiff's Fed.R.Civ.P. 41 (a)(2) motion to dismiss without prejudice, which asserted that a necessary additional plaintiff to this matter was a resident of Michigan, and that his joinder would destroy this court's subject matter jurisdiction, based on diversity of citizenship.

In fact, defendant did file a response to the motion, on October 6, 2005, and requested that the matter be dismissed with prejudice and that the court assess costs and attorney fees for having brought the action in Federal Court "by improperly or collusively invoking Federal Court diversity jurisdiction in violation of 28 U.S.C. 1359."

The court is not convinced by defendant's response that either dismissal with prejudice or an assessment of costs and/or attorney fees is appropriate here. Plaintiff has requested dismissal without prejudice by motion to the court in the absence of defendant's stipulation to the same. The rule requiring action of the court is for the purpose of protection of the nonmovant from unfair treatment. Grover v. Eli Lilly and Company, 33 F.3d 716, 718 (6^th Cir. 1994) (citation omitted). The district court is given discretion in making this decision, and "an abuse of discretion is found only where the defendant would suffer `plain legal prejudice' as a result of a dismissal without prejudice, as opposed to facing the mere prospect of a second lawsuit." Id., citing Cone v. West Virginia Pulp Paper Co., 330 U.S. 212, 217 (1947).

Defendant does not convince the court that it will suffer "plain legal prejudice" from dismissal of this lawsuit without prejudice. The court therefore confirms its prior decision granting plaintiff's motion for dismissal without prejudice, and finds an award of costs or attorney fees for either party to this matter would be inappropriate.

IT IS SO ORDERED.