Marla Ubaldo Ramos et al v. ONEOK Rockies Midstream, L.L.C. et al
MEMORANDUM AND ORDER denying 110 Motion to Dismiss Without Prejudice. Signed by District Judge Holly L. Teeter on 1/8/2021. (md)
Case 2:19-cv-02602-HLT-ADM Document 124 Filed 01/08/21 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ARNULFO RAMOS RIOS,
Case No. 5:19-cv-02602-HLT
REX RAMAGE AND ONEOK SERVICES
MEMORANDUM AND ORDER
This negligence action arises out of injuries allegedly sustained by Plaintiff Arnulfo Ramos
Rios in connection with a motor vehicle accident with Defendant Rex Ramage. Plaintiff has sued
Ramage and his employer, ONEOK Services Company, LLC., for negligence, alleging diversity
jurisdiction. Defendants have sought to compare fault with the municipalities responsible for the
intersection where the collision occurred. Plaintiff now moves to voluntarily dismiss his claims
without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2) so he can refile the action
against Defendants and the nondiverse municipalities in state court. Doc. 110. For the following
reasons, the Court denies Plaintiff’s motion.
This case arises from an accident in Rice County, Kansas, in which Plaintiff, a Kansas
resident, alleges he was seriously injured. Plaintiff contends that Defendant Ramage, an Oklahoma
resident, negligently failed to yield the right-of-way and that his employer, Defendant ONEOK, a
Delaware company, is liable because Ramage was acting within the course and scope of his
employment at the time of the accident. Defendants dispute their liability, arguing that Plaintiff
and the driver of his vehicle were negligent. They also argue that Rice County and Union
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Township—the relevant municipalities in which the accident occurred—were negligent in failing
to properly grade the road and install proper traffic controls.
Defendants initially identified Rice County and Union Township as potentially liable
parties in a designation of comparative fault filed on January 31, 2020. Doc. 23. Rios had until
February 14, 2020, to add Rice County and Union Township as additional parties. Doc. 22 at 8.
He did not do so. Over the following months, the parties engaged in discovery, took many
depositions, and disclosed their expert reports.
On August 12, 2020, Plaintiff’s new counsel entered his appearance. Doc. 59. Following
this change in counsel, Plaintiff later sought to supplement his initial disclosures by adding 17
witnesses two weeks after the September 25, 2020 deadline to supplement disclosures had passed.
Defendants moved to strike (Doc. 104), and the magistrate judge granted the motion in part,
limiting Plaintiff to five additional witnesses. Doc. 117.
Discovery closed on November 4, 2020. Doc. 72 at 1. The parties submitted a proposed
pretrial order on November 9, 2020. In the proposed pretrial order, Defendants again asserted that
Rice County and Union Township were negligent. Doc. 122-1 at 5. The same day the parties
submitted the proposed pretrial order, Rios filed a two-page motion to dismiss without prejudice,
without citation to caselaw. Doc. 110. Plaintiff filed this motion just eight days before the deadline
for dispositive and Daubert motions.
In his motion, Plaintiff contends that his former counsel failed to move to join the
municipalities identified in Defendants’ comparative-fault designation by the February 14, 2020
deadline and that he cannot join them now because it would destroy diversity. He seeks dismissal
of this case so he can serve the required statutory notice on Rice County and Union Township
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under K.S.A. § 12-105b and then refile the case in state court with all potentially liable parties as
defendants. Defendants oppose dismissal at this stage. Doc. 120.
Under Federal Rule of Civil Procedure 41, where the defendant has already filed an answer
or a motion for summary judgment, and there is no stipulation of dismissal signed by all parties,
“an action may be dismissed at the plaintiff’s request only by court order, on terms that the court
considers proper.” Fed. R. Civ. P. 41(a)(2). This rule “is designed primarily to prevent voluntary
dismissals which unfairly affect the other side, and to permit the imposition of curative
conditions.” Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 357 (10th Cir. 1996) (internal
quotation omitted). Although “[t]hese matters fall within the district court’s discretion,” the court
ordinarily will grant a motion for voluntary dismissal absent “legal prejudice” to the defendant.
Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005).
In evaluating “legal prejudice,” the Tenth Circuit has articulated the following nonexhaustive list of relevant factors to consider: (1) the opposing party’s effort and expense in
preparing for trial, (2) excessive delay and lack of diligence on the part of the movant, (3)
insufficient explanation of the need for a dismissal, and (4) the present stage of the litigation.
Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). The court should also consider any
other relevant factors in making its determination. Id. “Each factor need not be resolved in favor
of the moving party for dismissal to be appropriate, nor need each factor be resolved in favor of
the opposing party for denial of the motion to be proper.” Id. Ultimately the court should “endeavor
to insure substantial justice is accorded” to the parties. Id. To that end, the court considers the
equities facing both the plaintiff and the defendant. Id.
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In accordance with this standard, the Court must determine whether Defendants will suffer
legal prejudice if the Court grants Plaintiff’s motion to dismiss. If so, the Court must deny
The Court first notes that Plaintiff’s motion was substantively less than two pages. It
contained no caselaw and did not address the applicable standard at all, or any of the factors listed
above. After a fulsome response by Defendants, Plaintiff filed a 15-page reply. Such backloaded
briefing is neither helpful nor proper. See SCO Grp., Inc. v. Novell, Inc., 578 F.3d 1201, 1226 (10th
Cir. 2009). But even if Plaintiff had properly presented arguments in favor of dismissal, the Court
would conclude that the factors and equities outlined above justify denial of Plaintiff’s motion.
Defendants’ Effort and Expense in Preparing for Trial
The first factor considers Defendants’ effort and expense in preparing for trial. Defendants
have expended substantial effort and cost to this point. They have deposed multiple fact witnesses
and expert witnesses, prepared expert reports, and engaged in briefing. Defendants contend they
have based their decisions on what experts to hire and depose and the scope of their reports on the
municipalities not being parties, and on Plaintiff’s current expert designations. Courts in this
District have routinely considered such pretrial efforts in weighing this factor. See, e.g., 103 Inv’rs
I, L.P. v. Square D Co., 222 F. Supp. 2d 1263, 1271 (D. Kan. 2002) (noting multiple depositions,
preparation of expert reports, Daubert motion, and dispositive motion in finding first factor
weighed “heavily” in favor of overruling a plaintiff’s motion to dismiss without prejudice), aff’d
in part & rev’d in part on other grounds by 372 F.3d 1213 (10th Cir. 2004).
Plaintiff argues that Defendants will not suffer any prejudice because they will be able to
use all their discovery in any newly filed case. But although Plaintiff assures the Court that
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discovery will not “retread old ground,” he concedes that new discovery requests or depositions
may be necessary concerning Rice County and Union Township. Doc. 122 at 13. Plaintiff also
argues that Defendants cannot be prejudiced because the comparative liability of the municipalities
can be addressed regardless of the forum or regardless of whether the municipalities are joined.
This argument is improperly raised in his reply and overly simplifies the situation. See SCO Grp.,
Inc., 578 F.3d at 1226. But even if this is true, Defendants would still incur additional expenses
defending the action again if the municipalities were joined in state court. Given that Defendants
have already put considerable effort and expense in litigating this case up to the pretrial order, this
first factor weighs against dismissal.
Excessive Delay and Lack of Diligence by Plaintiff
The Court next considers any excessive delay or lack of diligence by Plaintiff. Plaintiff
filed this action in October 2019, and Defendants identified Rice County and Union Township in
their comparative-fault designation on January 31, 2020. Plaintiff never sought to add them as
parties and waited more than nine months to seek dismissal. During this time, the parties conducted
discovery, engaged in mediation and motion practice, and generally proceeded as if this case would
be decided in its current form.
Although Plaintiff attempts to shift blame to his former attorney for “not pursu[ing] this
litigation in a manner that would protect [Plaintiff’s] best interests,” Doc. 122 at 2, he “cannot now
avoid the consequences of the acts or omissions of this freely selected agent” because a “party is
deemed bound by the acts of his lawyer-agent . . . .” Link v. Wabash Railroad Co., 370 U.S. 626,
633-634 (1962). Plaintiff further tries to shift blame for his former attorney’s actions by arguing
that his mother selected his first lawyer because he was a minor at the time. But this argument—
like all Plaintiff’s substantive arguments—was improperly made for the first time in his reply. See
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SCO Grp., Inc., 578 F.3d at 1226. Regardless, this fact does not change the above analysis. The
Court also notes that Plaintiff’s current attorney entered his appearance on August 12, 2020. Doc.
59. But the new attorney did not file the motion to dismiss until November 9, 2020—the day the
parties submitted the proposed pretrial order and right before Daubert and dispositive motions
were due. No explanation for this delay is given. In that intervening period, the docket reflects
extensive discovery took place.
Plaintiff argues—again, for the first time in his reply, see SCO Grp., Inc., 578 F.3d at
1226—that Defendants’ defense of comparing the liability of the municipalities would not have
been obvious and that “its discovery could very well be quite a bit later than discovering the party
who actually failed to yield to a stop sign.” Doc. 122 at 5. Even if that were true, Plaintiff was not
operating on a blank slate; he was quite literally given notice that Defendants intended to compare
the fault of the municipalities when they filed their designation of comparative fault on January
31, 2020. Doc. 23; see also King v. Kindred Nursing Centers W., L.L.C., 2007 WL 9710305, at *3
(D. Wyo. 2007) (finding that the plaintiff should not be “permitted to slumber on her rights” when
the underlying facts were long known). Accordingly, the Court finds that Plaintiff’s delay and lack
of diligence weigh against dismissal at this stage of the case.
Plaintiff’s Explanation of the Need for Dismissal
The Court next considers Plaintiff’s explanation of his need to dismiss this case. In his
motion, Plaintiff claims that he faces “the real potential for liability to be apportioned to these nonparties if this case is to proceed to trial without” them, but that he cannot join Rice County and
Union Township because it would destroy the Court’s diversity jurisdiction. Doc. 110 at 1. The
remedy, he proposes, is to refile the action in state court against all potentially liable parties.
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Plaintiff is correct that joining Rice County and Union Township to this case would likely
destroy the Court’s diversity jurisdiction. McPhail v. Deere & Co., 529 F.3d 947, 951 (10th Cir.
2008) (“Under 28 U.S.C. § 1332(a), the citizenship of all defendants must be different from the
citizenship of all plaintiffs.”).1 And it is possible that Plaintiff could refile in state court and bring
claims against Defendants as well as Rice County and Union Township and eliminate the risk that
liability could be apportioned to absent parties.2 But this does not require that the Court to grant
To the extent Plaintiff seeks dismissal so that he can pursue a state court case against Rice
County and Union Township, his motion is somewhat premature. As he acknowledges, he cannot
sue Rice County and Union Township until he serves them with notice and they either deny the
claim or wait 120 days. See K.S.A. § 12-105b(d). Rios gives no indication that he has served notice
on the municipalities. Accordingly, at this stage he cannot even immediately sue those parties.3
But even assuming Plaintiff can ultimately pursue a state-court action against the
municipalities, dismissal is not required simply because Plaintiff finds himself in a difficult
litigation position. As explained above, the parties have expended considerable effort in litigating
this case before this Court. The Court is mindful of the fact that Plaintiff will have to litigate this
According to the Second Amended Complaint, Plaintiff is a resident of Kansas. The municipalities he seeks to add
are also located in Kansas. See Holton Unified Sch. Dist. No. 336 v. Nabholz Constr. Corp., 2020 WL 7231989, at
*3 (D. Kan. 2020) (noting that governmental subdivisions in the state of Kansas are considered citizens of Kansas).
Although the two-year statute of limitations to file this action may have passed, see K.S.A. 60-513, Rios contends
that it is extended because he was a minor when the accident occurred, see K.S.A. § 60-515(a) (permitting a person
to bring suit within one year of reaching the age of majority).
Defendants also suggest that the municipalities may also ultimately prove to be immune from Plaintiff’s negligence
claim. Doc. 120 at 8. Because of this, Defendants alternatively seek a stay of this case so that, in the event the
immunity question is resolved after the deadline for removal, Defendants could still continue litigating the current
case in federal court. Plaintiff disputes that immunity would necessarily apply but contends that it is not a reason
to deny a motion to dismiss. Doc. 122 at 10-11. The Court disagrees. One of the factors considered is the reason
for the requested dismissal. Here, Plaintiff seeks dismissal so he can pursue his claims against the municipalities.
If he is unable to do that, or unlikely to be able to do that, this would undercut the need for dismissal in the first
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case with two potential absent tortfeasors, and this could cut into or even eliminate any recovery.
But it was Plaintiff’s decision to file the current case against the current parties. The fact that
Plaintiff regrets the decisions or was ill-served by his prior counsel and is not satisfied with how
this case has gone thus far does not convince the Court that dismissal is warranted, especially
considering how a complete do-over would potentially prejudice Defendants.
Present Stage of the Litigation
Finally, the Court considers the present stage of the case. Discovery closed November 4,
2020, and the parties have submitted a proposed pretrial order.4 Defendants were poised to file
dispositive and Daubert motions at the time Plaintiff filed the motion to dismiss. As discussed
above, Defendants have expended significant resources in the litigation thus far, and dismissal at
this stage would effectively restart this case not just from the beginning, but potentially 120 days
before the beginning to allow a sufficient notice period for the municipalities. This, along with the
other factors above, would amount to legal prejudice to Defendants. See Brown, 413 F.3d at 1123.
The Court finally notes that, shortly before Plaintiff’s moved to dismiss, Defendants moved
to strike some late witness disclosures by Plaintiff. Specifically, Plaintiff disclosed 17 new fact
witnesses after the deadline to supplement disclosures had passed, and just a few weeks before
discovery ended. See Doc. 117 at 1. The magistrate judge ultimately allowed Plaintiff to disclose
only five additional witnesses and granted the motion to strike as to the remainder. Defendants
argue that, should the Court grant dismissal, it should issue a curative condition that Plaintiff be
limited to calling the fact witnesses allowed by the magistrate judge’s order. Doc. 120 at 11.5
The Final Pretrial Conference was continued after Plaintiff filed the motion to dismiss. See Doc. 116.
Defendants request a total of six curative conditions should the Court find that dismissal is proper. It is unclear to
what extent this Court could impose binding restrictions on a state court proceeding involving at least some
additional parties. Regardless, such dubious measures still would not eliminate the prejudice incurred from
Plaintiff’s excessive delay and the advanced stage of this litigation. Plaintiff, himself, opposes a stay while he
satisfies Kansas’s notice requirements for suing Rice County and Union Township and a state court determines
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Although the Court ultimately finds that dismissal should be denied, and therefore that no curative
conditions are required, the Court notes that these circumstances further weigh in favor of denying
Plaintiff’s motion to dismiss.
Although the magistrate judge had not yet ruled on Defendants’ motion to strike at the time
Plaintiff moved to dismiss, Defendants had already filed the motion. Allowing Plaintiff to dismiss
this case and then restart it in state court would effectively allow him a litigation do-over, not only
in general, but specifically as to this ruling. Not only would this cause Defendants extra effort and
expense, but it would allow Plaintiff to circumvent the prior rulings and decisions in this case and
reward him for his unexplained delay. See Barcus v. Phoenix Ins. Co., 2019 WL 2006018, *4 (D.
Kan. 2019) (finding as improper an attempt to dismiss and refile to circumvent Daubert rulings).
This consideration therefore also weighs in favor of denying dismissal. Ohlander, 114 F.3d at
Based upon its examination of the foregoing factors, the Court concludes that Defendants
would suffer legal prejudice if the Court were to grant Plaintiff’s motion to dismiss without
THE COURT THEREFORE ORDERS that Plaintiff’s Motion to Dismiss Without
Prejudice (Doc. 110) is DENIED.
IT IS SO ORDERED.
Dated: January 8, 2021
/s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE
their immunity. He opposes Defendants’ other proposed curative conditions as efforts to “hamstring” his litigation.
Doc. 122 at 13. He does not propose alternative conditions.
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