City of Granite City v. Consolidated Utility Services, Inc. et al

Filing 32

ORDER DISMISSING CASE, granting plaintiff's 30 MOTION to Dismiss Voluntary without prejudice and denying plaintiff's 11 MOTION to Remand as moot. Signed by Chief Judge David R. Herndon on 5/3/2011. (msdi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

CITY OF GRANITE CITY,
Plaintiff,
v.
CONSOLIDATED UTILITY SERVICES,
INC. et al.,
Defendants.

Case No. 10-cv-833-DRH
ORDER

HERNDON, Chief Judge:
Before the Court is plaintiff’s motion to remand to state court (Doc.
11) and plaintiff’s motion for voluntarily dismissal (Doc. 30). Plaintiff filed a motion
for voluntary dismissal (Doc. 30) of this action pursuant to Federal Rule of Civil
Procedure 41(a)(2), on the basis that it intends to file a cause of action against an
additional party which will destroy complete diversity and therefore this Court’s
jurisdiction. For the reasons that follow, the Court GRANTS plaintiff’s motion for
voluntary dismissal (Doc. 30) without prejudice, and DENIES plaintiff’s motion to
remand (Doc .11) as MOOT.
Federal Rule of Civil Procedure 41(a)(2) provides, in relevant part, as
follows:
"Except as provided in Rule 41(a)(1), an action may be dismissed
at the plaintiff's request only by court order, on terms that the
court considers proper.
If a defendant has pleaded a
Page 1 of 4

counterclaim before being served with the plaintiff's motion to
dismiss, the action may be dismissed over the defendant's
objection only if the counterclaim can remain pending for
independent adjudication."
FED . R. CIV . P. 41(a)(2). It is within the court’s sound discretion in deciding
whether to permit a plaintiff to voluntarily dismiss an action pursuant to Rule
41(a)(2). Tolle v. Carroll Touch, Inc., 23 F.3d 174, 177 (7th Cir. 1994); Tyco
Labs., Inc. v. Koppers Co., 627 F.2d 54, 56 (7th Cir. 1980). In deciding whether
to grant a Rule 41(a)(2) motion to dismiss, a court may look at a variety of factors,
including: (1) a defendant’s effort and resources already expended in preparing for
trial; (2) excessive delay and lack of diligence on the part of plaintiff in prosecuting
the action; (3) insufficient explanation for the need of a dismissal; and (4) whether
a summary judgment motion has been filed by defendant. Tyco Labs., 627 F.2d
at 56. A district court’s decision will only be reversed if it abuses its discretion.
Id.
In the instant matter, plaintiff, the City of Granite City, brought suit in
state court against defendants Consolidated Utility Services, Inc. (Consolidated),
and St. Louis Stabilizing, Inc., for damages that occurred to plaintiff’s waste water
collection system as a result of a construction project at 1505 Joy Avenue in
Granite City. Defendant Consolidated removed this case from state court upon
the basis of diversity jurisdiction (Doc. 2). Upon removal. both defendant
Consolidated and St. Louis Stabilizing, Inc. filed their answers (Docs. 3, 13) to the
complaint, and plaintiff filed a motion to remand to state court (Doc. 11). St.

Page 2 of 4

Louis Stabilizing, Inc., filed a counterclaim against Consolidated (Doc. 14), and
Consolidated filed its answer to the counterclaim (Doc. 15). Consolidated also
filed a response and memorandum in support to plaintiff’s motion to remand
(Docs. 16 & 17). A discovery order (Doc. 21) was also issued by the Court but it is
not apparent from the record as to the amount of effort either party has expended
in this regard. Plaintiff’s motion for voluntary dismissal (Doc. 30), was filed on
March 24, 2011, and the docket sheet indicated that any responses were due by
April 28, 2011. To date no responses have been filed and the time for doing so
has passed.
In plaintiff’s motion for voluntary dismissal (Doc. 30), plaintiff
indicates that evidence has come to light which reveals that plaintiff may maintain
a cause of action against an additional party, specifically Juneau Associates, Inc.,
P.C. (Juneau Associates), an Illinois corporation with its principal place of
business in Granite City, Illinois. Plaintiff states that it intends to file an amended
complaint in which it will pursue a cause of action against Juneau Associates and
that a cause of action against Juneau Associates will destroy complete diversity
and this Court’s jurisdiction because both it and Juneau Associates are Illinois
citizens. As a result, plaintiff requests the Court to grant the motion for
voluntarily dismissal without prejudice.
Considering the factors mentioned above, the Court finds that the
action may be dismissed. Here, the defendants have certainly expended some
effort in litigating this matter, but those efforts can also be utilized in state court.
Page 3 of 4

There does not appear to be any excessive delay or lack of diligence on plaintiff in
prosecuting this action, and the Court finds the plaintiff’s explanation for the
dismissal sufficient. Moreover, neither defendant has filed a motion for summary
judgment, and neither defendant filed a response or any objections to plaintiff’s
motion within the time frame allotted for such. The Court construes their silence
as having no objection. Furthermore, defendant St. Louis Stabilizing, Inc., will be
not prejudiced by this dismissal, as it can proceed with its counterclaim against
Consolidated in the state court proceeding. Accordingly, the Court GRANTS
plaintiff’s request (Doc. 30) to dismiss pursuant to Rule 41(a)(2). Plaintiff’s
motion to remand (Doc. 11) is DENIED as MOOT. Plaintiff’s suit is hereby
DISMISSED WITHOUT PREJUDICE. The Court will close the file.

IT IS SO ORDERED.
Signed this 3rd day of May, 2011.

David R.
Herndon
2011.05.03
11:58:02 -05'00'
Chief Judge
United States District Court

Page 4 of 4