Cox v. Aramark Food Service, LLC et al
MEMORANDUM AND ORDER dismissing the case without prejudice, denying as moot 3 Motion to Dismiss; denying as moot 5 Motion to Dismiss. Signed by District Judge Eric F. Melgren on 1/8/2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NICHOLAS A. COX,
Case No. 13-2406
ARAMARK FOOD SERVICE LLC,
ARAMARK SUPERVISOR HALL,
ARAMARK SUPERVISOR HIGHTOWER,
MEMORANDUM AND ORDER
Pro se Plaintiff Nicholas Cox filed this lawsuit against Defendants Aramark Food Service
LLC, Aramark Supervisor Hall, and Aramark Supervisor Hightower.1 Plaintiff asserts several
claims against Defendants including that they violated his First Amendment right to free exercise
of religion, violated his rights under the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), violated his Fourteenth Amendment right to equal protection under the law, and
violated his First and Fourteenth Amendment rights to be free of retaliation for protected
conduct. Defendants filed motions to dismiss, or in the alternative, motions for summary
judgment (Docs. 3, 5). Instead of filing a response to these motions, Plaintiff filed a “Notice of
Plaintiff originally filed his petition in the District Court of Johnson County, Kansas. Defendants
removed the case to this Court within thirty days of service.
Voluntary Dismissal” (Doc. 9). In Plaintiff’s Notice of Dismissal, he states that he “gives notice
to all defendants . . . that I voluntarily dismiss them from the above case number, thus dismissing
Because Defendants have filed a motion for summary judgment,2 Fed. R. Civ. P. 41(a)(2)
is applicable. This rule provides that “an action may be dismissed at the plaintiff’s request only
by court order, on terms that the court considers proper.”3 It also provides that “[u]nless the
order states otherwise, a dismissal under this paragraph (2) is without prejudice.”4 Rule 41(a)(2)
dismissals are “designed primarily to prevent voluntary dismissals which unfairly affect the other
side, and to permit the imposition of curative conditions.”5 It is within the Court’s discretion
whether to grant or deny a voluntary dismissal.6 Generally, the Court should grant such a
dismissal absent “legal prejudice” to the defendant.7 The following factors are relevant when
making this determination: “the opposing party’s effort and expense in preparing for trial;
excessive delay and lack of diligence on the part of the movant; insufficient explanation of the
need for a dismissal; and the present stage of litigation.”8
Instead of filing an answer to the complaint, Defendants filed a motion to dismiss, or in the alternative, a
motion for summary judgment. Had Defendants not filed their motions for summary judgment, Plaintiff could have
dismissed the action pursuant to Fed. R. Civ. P. 41(a)(1) without a court order.
Fed. R. Civ. P. 41(a)(2).
Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005).
Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).
In this case, only one factor weighs in favor of Defendants. Plaintiff fails to provide any
reason for the voluntary dismissal.9 Otherwise, all factors are in Plaintiff’s favor. Defendants
have not put much any effort or expense into preparing for trial. Indeed, they have put minimal
effort and expense into the case because the only actions taken thus far are removal from state
court and the filing of motions to dismiss. Plaintiff promptly filed a Notice of Dismissal after
Defendants filed their motions to dismiss which indicates that Plaintiff has not engaged in undue
delay. Finally, the case is in the beginning stage of litigation, and no discovery has occurred.10
In sum, the factors weigh in favor of the Court dismissing this action without prejudice.
IT IS ACCORDINGLY ORDERED this 8th day of January, 2014, that the Court
orders this action DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss, or in the
Alternative, Motions for Summary Judgment (Docs. 3, 5) are DENIED AS MOOT.
IT IS SO ORDERED.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
The Court notes that Plaintiff is pro se.
There are only ten docket entries in the case.
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