Thompson v. Planters Cotton Oil Mill

Filing 34

ORDER granting Mr. Thompson's 29 motion and dismissing without prejudice Mr. Thompson's 1 complaint, subject to the conditions stated in this Order. Signed by Judge Kristine G. Baker on 05/29/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CALVIN THOMPSON
v.

PLAINTIFF
Case No. 5:13-cv-00186-KGB

PLANTERS COTTON OIL MILL

DEFENDANT
ORDER

Before the Court is plaintiff Calvin Thompson’s motion for voluntary nonsuit (Dkt. No.
29). Mr. Thompson moves to dismiss without prejudice his pending claims against defendant
Planters Cotton Oil Mill (“Planters”) and purports to reserve the right to refile this action within
one year.

Planters has responded and requests that the Court condition dismissal without

prejudice upon payment of all costs associated with this lawsuit, including the attorney’s fees
expended in preparing Planters’s pending motion for summary judgment, if this action is refiled
(Dkt. No. 30).
By prior Order, the Court cautioned that the practical effect of a nonsuit pursuant to Rule
41(a) may be a dismissal with prejudice of Mr. Thompson’s claims under Title VII and the Age
Discrimination in Employment Act (Dkt. No. 31). Also, the Court informed Mr. Thompson that
the Court may impose certain conditions on the dismissal and refiling of this action, including an
award of costs upon refiling (Id.). Based on this, the Court instructed Mr. Thompson to notify
the Court whether he intends to persist in requesting a dismissal without prejudice of this action.
Mr. Thompson has responded to the Court’s Order and notified the Court that he elects to
proceed with his request to dismiss voluntarily this case, although he objects to the Court’s
imposing conditions on the dismissal and refiling of this action (Dkt. No. 32). Mr. Thompson’s
objections to the Court’s proposed conditions center on the state of discovery in this matter. This

Court previously addressed the background facts relevant to the state of discovery and the
procedural posture of this case (Dkt. No. 28); the Court need not do so again here to resolve the
issues before it. Planters has replied to Mr. Thompson’s response to the Court’s Order and
endorses the Court’s conditions for dismissal and refiling (Dkt. No. 33).
Because Planters has served an answer and a motion for summary judgment, this action
may be dismissed at Mr. Thompson’s request “only by court order, on terms that the court
considers proper.” Fed. R. Civ. P. 41(a)(2). Generally, “in the federal courts, after answer,
dismissals without prejudice should be granted only ‘if no other party will be prejudiced.’” Kern
v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 1984) (quoting 9 Wright & Miller, Fed.
Prac. & Proc. Civ. § 2362 (1971)). “By ‘prejudice’ in this context is meant something other
than the necessity that defendant might face of defending another action.

That kind of

disadvantage can be taken care of by a condition that plaintiff pay to defendant its costs and
expenses incurred in the first action.” Kern, 738 F.2d at 970.
In its prior Order, the Court informed Mr. Thompson that, if he persists with his motion
and the Court grants the motion, the Court may condition dismissal and the refiling of this action
on the following: (1) that the suit be refiled in this Court; (2) that no further discovery occur in
the case without prior leave of the Court; and (3) that, if and when this case is refiled, the Court
will assign to Mr. Thompson, at least, all duplicative costs and fees incurred by Planters related
to the refiling of this case and, at most, all costs and fees previously incurred by Planters. The
Court reserved ruling on any request for costs and fees until after the case is dismissed on Mr.
Thompson’s motion and later refiled; Federal Rule of Civil Procedure 41 permits the Court to
stay the refiled proceedings until the plaintiff has complied. Fed. R. Civ. P. 41(d).

2

The Court has considered Mr. Thompson’s objections to the proposed conditions stated
in Court’s prior Order. Given Mr. Thompson’s objection to the proposed condition that he be
restricted to refiling in this Court, the Court will not impose the condition that Mr. Thompson
may refile only in this Court. See Kern, 738 F.2d at 973. The Court will impose the condition
that, if and when this case is refiled, the Court will assign to Mr. Thompson, at least, all
duplicative costs and fees incurred by Planters related to the refiling of this case and, at most, all
costs and fees previously incurred by Planters.
The Court reserves ruling on any request for costs and fees until and if the case is refiled.
If Mr. Thompson refiles in federal court, the payment of costs and fees in an amount to be
determined shall be required before the second action is permitted to proceed. See Fed. R. Civ.
P. 41(d); Kern, 738 F.2d at 972. If Mr. Thompson refiles in state court, Planters may apply for
this Court to enter judgment against Mr. Thompson for an appropriate amount of costs and fees.
Kern, 738 F.2d at 972.
Accordingly, subject to the conditions stated in this Order, the Court grants Mr.
Thompson’s motion and dismisses without prejudice Mr. Thompson’s complaint (Dkt. No. 29).
SO ORDERED this the 29th day of May, 2015.

____________________________________
Kristine G. Baker
United States District Judge

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