Coleman v. General Motors et al
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that plaintiff's motion to dismiss 34 is granted on the conditions stated within the order. SEE ORDER FOR DETAILS. Signed by District Judge Carlos Murguia on 1/30/2013. Mailed to pro se party Charlotte Coleman by certified mail ; Certified Tracking Number: 7009 1410 0002 0381 8303 (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GENERAL MOTORS, et al.,
Case No. 12-2305-CM
MEMORANDUM AND ORDER
Plaintiff filed this lawsuit against defendant on May 21, 2012. Currently before the court is
plaintiff’s motion to dismiss her lawsuit without prejudice pursuant to Federal Rule of Civil Procedure
41(a)(2). She argues that dismissal without prejudice is warranted because she cannot proceed with
her case without an attorney at the present time. (Doc. 34 at 1.) Her motion offers no further
explanation for the relief sought.
Defendant General Motors LLC (“GM”) filed a response to plaintiff’s motion. GM does not
object to plaintiff’s request but asks that the court, pursuant to its discretionary powers, set terms and
conditions that if the above matter is refiled, GM is entitled to cost, expenses and fees for any
duplicative work. The remaining defendants did not respond to plaintiff’s motion.
Rule 41(a)(2) allows a district court to dismiss a case at the plaintiff’s request after the
opposing party has filed an answer or a motion for summary judgment “only by court order, on terms
the court considers proper.” The purpose of this rule is to “prevent voluntary dismissals which unfairly
affect the other side, and to permit the imposition of curative conditions.” Brown v. Baeke, 413 F.3d
1121, 1123 (10th Cir. 2005) (internal quotation and citation omitted). The conditions imposed should
be limited to conditions that actually “alleviate any prejudice a defendant might otherwise suffer upon
refiling of an action.” Am. Nat’l Bank & Trust Co. of Sapulpa v. Bic Corp., 931 F.2d 1411, 1412 (10th
Based on the facts of this case, the court determines that all defendants are entitled to the
following curative condition. Specifically, the court will dismiss this lawsuit without prejudice subject
to the condition that, prior to refiling some or all of the asserted claims against a defendant in this case
in any court, plaintiff will be required to pay that defendant’s reasonable attorney’s fees and costs
incurred in this action less any attorney’s fees and costs for work that may be utilized in the subsequent
action.1 See AeroTech, Inc. v. Estes, 110 F.3d 1523, 1527–28 (10th Cir. 1997) (explaining that an
award of attorney’s fees is an appropriate condition for dismissal without prejudice). The procedure
for implementing this condition will be as follows:
Plaintiff must file a notice with this court (copy to the defendant) of her intent to refile
some or all of the claims asserted in this lawsuit;2
Within fourteen (14) days of plaintiff’s filing, the defendant may file an application
with supporting case law, affidavits, and exhibits outlining its attorney’s fees and costs
incurred in defending this lawsuit less any attorney’s fees and costs for work that may
be utilized in the subsequent action;
Within fourteen (14) days of the defendant’s filing, plaintiff may file an opposition;
The court will enter an order stating the amount of fees and costs to be paid; and
Within ten (10) days of the court’s order, plaintiff must file a notice with the court
indicating that the amount of fees and costs has been paid. If plaintiff does not pay the
required amount within this time, the defendant may move the court for an order
converting the dismissal without prejudice to dismissal with prejudice.
Because the court imposes a condition for this dismissal, plaintiff has the right to withdraw her
motion to dismiss if this condition is too onerous. See Gonzales v. City of Topeka, 206 F.R.D. 280,
The court intends for this curative condition to be on a defendant-by-defendant basis. In other words, if plaintiff wants
to refile some or all of her asserted claims against GM, she must pay GM’s reasonable attorney’s fees and costs
incurred in this action less any attorney’s fees and costs for work that may be utilized in the subsequent action.
Plaintiff may refile her claim after this notice is filed, but she must promptly move the new court for a temporary stay
pending resolution of the fee issue before this court.
282 (D. Kan. 2001) (“The moving plaintiff must be given a reasonable opportunity to withdraw his
motion if he finds those conditions unacceptable or too onerous.”) (internal quotation and citation
omitted). Therefore, the court gives plaintiff until February 13, 2013, to withdraw her motion. If
plaintiff does not withdraw her motion within this time, then this order granting plaintiff’s motion on
the above condition will take effect on February 14, 2013.
IT IS THEREFORE ORDERED that plaintiff’s motion to dismiss (Doc. 34) is granted on the
condition stated above subject to plaintiff’s decision to withdraw her motion on or before February 13,
Dated this 30th day of January, 2013, at Kansas City, Kansas.
_s./ Carlos Murguia___________
United States District Judge
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