Bailey et al v. OSF Healthcare System et al

Filing 71

ORDER entered by Judge Sara Darrow on September 28, 2017. Plaintiffs' 62 motion to dismiss is GRANTED. The motions for leave to file a 68 reply and a 69 sur-reply are DENIED. Other 52 53 55 56 58 pending motions are MOOT. The Clerk is directed to enter judgment and close the case. (SC, ilcd)

E-FILED

Thursday, 28 September, 2017 11:57:17 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
BONNIE BAILEY, PEGGY WISE, and
JUNE SCHWIERJOHN, individually and on
behalf of themselves and all others similarly
situated,
Plaintiffs,
v.
OSF HEALTHCARE SYSTEM, THE
SISTERS OF THE THIRD ORDER OF ST.
FRANCIS EMPLOYEES PENSION PLAN
ADMINISTRATIVE COMMITTEE, THE
SAINT ANTHONY’S HEALTH CENTER
RETIREMENT COMMITTEE, and JOHN
DOES 1–20,
Defendants.

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Case No. 1:16-cv-01137-SLD-TSH

ORDER
Before the Court is Plaintiffs’ motion to voluntarily dismiss the Second Amended
Complaint, ECF No. 62. Plaintiffs also sought leave to file a reply to Defendants’ response to
that motion, ECF No. 68, and then Defendants sought leave to file a sur-reply to that motion,
ECF No. 69. For the reasons that follow, the motion to dismiss is GRANTED and the motions
for leave DENIED. In addition, several earlier pending motions—a motion for extension of time
to file a motion to strike, ECF No. 52, a motion to stay, ECF No. 53, a motion for hearing on that
motion, ECF No. 55, and two motions for leave to file notice of supplemental authority, ECF
Nos. 56, 58—are made MOOT by the Court’s order today.
BACKGROUND

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As recounted in greater detail in the Court’s March 23, 2017 Order, ECF No. 61,
Plaintiffs, who sue on their own behalf and that of a putative class, are or were employees of
Defendant OSF HealthCare System’s (“OSF”) Saint Francis Medical Center in Peoria, Illinois.
Plaintiffs claim that the retirement plan Defendants run, in which Plaintiffs participate, is funded
at a lower level than is required by the Employee Retirement Income Security Act of 1974, 29
U.S.C. §§ 1001–1461 (“ERISA”). Plaintiffs filed suit on May 3, 2016, see Compl., ECF No. 1,
in the Central District of Illinois, where Saint Francis Medical Center is located.
However, six days earlier, another pair of plaintiffs, Sheilar Smith and Kasandra Anton
(“the Smith plaintiffs”) had filed suit against OSF on a nearly identical theory in the Southern
District of Illinois, where Smith had been employed at OSF’s Saint Anthony’s facility. See
Smith Compl. 2, ECF No. 1; Smith v. OSF, No. 3:16-cv-00467-SMY-RJD (S.D. Ill. Apr. 27,
2016) (hereafter “Smith”).
A protracted battle over venue began, with no side indifferent. First, OSF moved in the
Southern District to transfer the Southern District litigation to the Central District. OSF Mot.
Change Venue, Smith ECF No. 33. The court denied that motion, Jul. 25, 2016 Order, Smith
ECF No. 45, and denied a motion to reconsider the denial, Aug. 17, 2016 Order, Smith ECF No.
54. Then, the Smith plaintiffs moved in the Central District, before this Court, to intervene, Mot.
Intervene, ECF No. 23, solely for the purpose of seeking an order transferring this case to the
Southern District, perhaps for consolidation, Mot. Transfer, ECF No. 25. Plaintiffs thought the
Smith Plaintiffs should be allowed to intervene, but then should be stuck here and forced to
litigate there claims here as well. Pls.’ Mem. Opp. Transfer 12, ECF No. 29. The Court let the
Smith plaintiffs intervene but denied the motion to transfer. See Mar. 23, 2017 Order 5–11.
While this was going on, OSF tried to transfer the Southern District case north again, this time

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via a motion before the United States Judicial Panel on Multidistrict Litigation (“the MDL
Panel”). See MDL Panel Not. of Hearing, ECF No. 41. The MDL Panel too said no. MDL
Order 1–3, ECF No. 49.
After this Court’s order denying the Smith plaintiffs’ request to transfer the case, instead
of proceeding to a scheduling conference, Plaintiffs filed the instant motion to dismiss. All is
now resolved between Plaintiffs and the Smith plaintiffs; they seek to litigate their claims
together in the Southern District. Mem. Supp. Mot. Dismiss 1–2, ECF No. 63. OSF, though,
objects: “The Motion should be denied because Plaintiffs fail to adequately explain why they
did not take steps in this direction long ago and, by so doing, reduce the burdens associated with
OSF’s efforts to consolidate the two actions.” Resp. Mot. Dismiss 1, ECF No. 66. Before, OSF
sought to reduce that burden and consolidate the actions; now, apparently, consolidation must be
opposed, and the burden of parallel litigation endured as the only just punishment for such delay.
Neither side was able to contain their argument to a single motion or response; instead, the
request to reply, and to sur-reply, quickly followed, and then a response opposing the latter, ECF
No. 70.
DISCUSSION
I.

Legal Standard on a Motion for Voluntary Dismissal by Plaintiff
A plaintiff may dismiss his claim without leave of court or the opposing party if he does

so before the other side has answered or moved for summary judgment. Fed. R. Civ. P.
41(a)(1)(A)(i). Thereafter, he may do so with only with the consent of all parties who have
appeared, id. 41(a)(1)(A)(ii), or with leave of the court and “on terms that the court considers
proper,” id. 41(a)(2). In these latter cases, unless the stipulation of the parties or the order of the
court states otherwise, the dismissal is without prejudice. Id. 41(a)(1)(B), 41(a)(2).

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A court’s grant of voluntary dismissal to a plaintiff over a defendant’s objection under
Rule 41(a)(2) “rests within the sound discretion of the district court.” Tyco Labs., Inc. v.
Koppers Co., 627 F.2d 54, 56 (7th Cir. 1980). “[F]actors to be considered in examining motions
to dismiss may properly include ‘the defendant’s effort and expense of preparation for trial,
excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action,
insufficient explanation for the need to take a dismissal, and the fact that a motion for summary
judgment has been filed by the defendant.’” Id. (quoting Pace v. Southern Express Company,
409 F.2d 331, 334 (7th Cir. 1969)). However, these factors are just a guide for the trial judge,
“in whom the discretion ultimately rests.” United States v. Outboard Marine Corp., 789 F.2d
497, 502 (7th Cir. 1986) (quoting Tyco, 627 F.2d at 56).
II.

Discussion
Dismissal is plainly proper in this case. Turning to the factors identified in Pace, the

Court first agrees with Plaintiffs that Defendants have been put to little or no expense in actually
preparing for trial. A scheduling conference has not yet occurred, and no discovery schedule has
been set. Virtually all of the litigation in this matter so far has been about where the litigation
will occur. Second, there is no evidence of excessive delay or lack of diligence on Plaintiffs’
part. While Defendant is correct in a trivial sense that, had Plaintiffs and the Smith plaintiffs
coordinated their efforts from the start, there would have been less ink spilled in this Court and in
the Southern District, Plaintiffs’ counsel avers, and the Court has no reason to doubt, that the
agreement all plaintiffs have finally arrived at was the result of ongoing negotiation between the
plaintiffs, and not of some desire maliciously to protract OSF’s preliminary litigation in more
than one venue. See Aff. Supp. Mot. Dismiss 2, ECF No. 64. Third, the explanation of the need
to take a dismissal could not be clearer: Plaintiffs seek to “avoid duplicative litigation efforts to

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the detriment of all parties, including Defendants.” Mem. Supp. Mot. Dismiss 2, ECF No. 63.
And fourth, no motion for summary judgment has been filed.
More broadly, it makes sense to dismiss one of the two lawsuits so that all plaintiffs can
try to pursue their claims in one forum, as Plaintiffs, OSF, and the Smith plaintiffs have all
argued at one point or another. As courts have long recognized, seeking to consolidate cases
with common questions of law and fact, like these ones, “promote[s] convenience and judicial
economy.” Midwest Cmty. Council, Inc. v. Chicago Park Dist., 98 F.R.D. 491, 499 (N.D. Ill.
1983). OSF’s arguments to the contrary begin by conceding the great economy that would be
achieved by having one lawsuit rather than two, but, perversely, do so only in order to flagellate
Plaintiffs for not having achieved such unanimity earlier. If OSF recognizes the value of
consolidation, as it says it did in seeking repeatedly to have both cases tried in the Central
District, it now seeks a strangely pyrrhic victory by asking the Court to refuse consolidation in
order to punish Plaintiffs (and everyone), and make both lawsuits go forward separately.
OSF opposes dismissal solely on the ground that Plaintiffs unfairly delayed this outcome,
but points to no reason that dismissal of this case works a harm against it, rather than the benefits
in economy identified above. Courts are empowered to impose conditions upon the withdrawal
of a claim under Rule 41(a)(2), up to and including making the dismissal with prejudice, in order
to protect the rights of defendants who may wish claims, once brought, to be adjudicated, and
who may not wish to be faced with the prospect of preparing for and repeating the initial phases
of a litigation already substantially begun. See McCall-Bey v. Franzen, 777 F.2d 1178, 1184 (7th
Cir. 1985) (“The rule states that dismissal is without prejudice unless otherwise specified, which
suggests, and it has been uniformly assumed, that the terms and conditions must be for the
defendant’s benefit. They are the quid for the quo of allowing the plaintiff to dismiss his suit

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without being prevented by the doctrine of res judicata from bringing the same suit again.”).
None of those interests are implicated here, and OSF needs no protection from repeated suit,
because Plaintiffs’ litigation against OSF will proceed regardless of the ruling on the motion to
dismiss. The only question is whether it will proceed before this Court or, at a savings of time
and expense for all parties and the Court, only in the Southern District, when Plaintiffs join the
Smith plaintiffs.
For all of these reasons, the Court grants Plaintiffs’ motion to dismiss. Furthermore, an
award of costs or attorney’s fees would be inappropriate in this case. OSF cites Mother &
Father v. Cassidy, 338 F.3d 704, 708–10 (7th Cir. 2003) in support of its request for fees and
costs, and argues that it has been put to the expense of preparing work product that won’t be
useful in subsequent claims. See Wells Fargo Bank, N.A. v. Younan Properties, Inc., 737 F.3d.
465, 468 (7th Cir. 2013). But the reason a court might want to order a defendant reimbursed for
expenses accrued in fighting a suit that ends in voluntary dismissal, with expected refiling
elsewhere, is to punish a plaintiff who should have just brought the suit in the correct jurisdiction
to begin with, and save the defendant from paying for the plaintiff’s acknowledged mistake. See
id. (“A judge who reasonably believed that the plaintiff had imposed a gratuitous expense on the
defendant by filing in the wrong court and now wanted to dismiss without prejudice in the
expectation of refiling in the right court would therefore be justified in conditioning voluntary
dismissal on the plaintiff’s reimbursing some or all of the defendant’s expenditures in litigating
the jurisdictional issue.”). Those circumstances do not apply here, where the dismissal is sought
not because Plaintiffs recognize that jurisdiction is inappropriate or venue does not lie, but in
order to promote judicial economy and speedy resolution of all claims. And Mother & Father
interpreted a Rule 41 dismissal with prejudice as invoking Rule 54’s presumptive award of costs

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to the prevailing party—but no one is asking for this dismissal to be with prejudice, so neither
Mother & Father or Rule 54 are in play.
The real question, in determining whether any kind of award to Defendants is
appropriate, is whether Defendants have been put to foreseeably unnecessary and redundant
expense in defending themselves in the instant action, now that Plaintiffs have agreed to
coordinate with their counterparts in the Southern District. See Wells Fargo, 737 F.3d at 468.
While OSF sought vigorously to compel all plaintiffs to litigate here in the Central District, it
was not forced to do so because Plaintiffs brought a suit that they should have known would
have to be dismissed for reasons of improper venue or lack of jurisdiction; rather, OSF did so for
presumably tactical reasons, in order to litigate in a venue of its choosing. That OSF has lost,
and the deference generally given to a plaintiff’s choice of forum has prevailed, see In re Nat’l
Presto Indus., Inc., 347 F.3d 662, 664 (7th Cir. 2003), does not mean that this result was
foreordained, or that Plaintiffs caused OSF needless expense in getting there. The parties will
bear their own costs.
CONCLUSION
Accordingly, Plaintiffs’ motion to dismiss, ECF No. 62, is GRANTED. The motions for
leave to file a reply, ECF No. 68, and a sur-reply, ECF No. 69, are DENIED. Other pending
motions, ECF Nos. 52, 53, 55, 56, and 58, are MOOT. The Clerk is directed to enter judgment
and close the case.

Entered this 28th day of September, 2017.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE
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