Thompson et al v. Kaz USA, Inc
MEMORANDUM AND ORDER STAYING CASE, Denying 7 MOTION to Dismiss Pursuant to F.R.C.P. 41 filed by Laura Thompson. Signed by Judge J. Phil Gilbert on 5/24/12. (bkl)
IN UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LAURA THOMPSON, et al.,
Case No. 3:12-cv-00099-JPG
KAZ USA, INC.,
MEMORANDUM & ORDER
This matter comes before the Court on plaintiff Thompson’s Motion to Voluntarily
Dismiss (Doc. 7). The defendant Kaz USA, Inc., (hereinafter “Kaz”), has filed a Response in
Opposition (Doc. 11). Thompson seeks to dismiss her pending action before this Court in order
to join her insurance company’s pending subrogation claim in St. Clair County, Illinois.
Thompson further seeks the dismissal to be without prejudice and to grant leave to re-file within
one year. Kaz opposes the dismissal and argues it is a “last-ditch effort to remand the case back
to St. Clair County.” (Doc. 11, para. 7). Thompson’s insurance company is seeking to recoup
money it paid out for property damage. Thompson on the other hand, is seeking compensation
for bodily injury. Katz argues these actions are not related and Thompson will not be able to join
the insurance company’s case.
Rule 41(a)(2) provides that only the Court may dismiss an action after an adverse party
has filed an answer or motion for summary judgment or in the absence of a stipulation of
dismissal of an entire case from all the parties. The Court may also impose such terms and
conditions as it deems proper, and normally those terms and conditions include paying the
defendants’ expenses incurred in defending the suit, including attorney’s fees. Marlow v.
Winston & Strawn, 19 F.3d 300, 303 (7th Cir. 1994). Ordinarily, however, the fee award should
only reimburse the defendant for work that would not be useful in subsequent litigation of the
same claim. Cauley v. Wilson, 754 F.2d 769, 772 (7th Cir. 1985). If the terms and conditions
are too onerous for the plaintiff, he may withdraw his motion and proceed with the case.
Marlow, 19 F.3d at 304. The decision to grant a voluntary dismissal after an answer has been
filed rests solely within the discretion of the trial court. Stern v. Barnett, 452 F.2d 211, 213 (7th
In the interest of preventing unnecessary delay and prejudice to the defendants (Tyco
Labs, Inc., v. Koppers Co., Inc., 627 F.2d 54, 56 (7th Cir. 1980)), the Court DENIES
Thompson’s Motion to Dismiss (Doc. 7). The Court will, however, STAY the proceedings for
ninety days to allow Thompson to attempt to join the pending litigation in St. Clair County,
Illinois. If Thompson is able to join, she may file a new motion to dismiss with the Court which
the Court will reconsider at that time. Otherwise, the Court will proceed with this matter in
IT IS SO ORDERED.
DATED: May 24, 2012
s./ J. Phil Gilbert____
J. PHIL GILBERT
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