Gibbs v. Breg, Inc. et al

Filing 71

ORDER - The motion of plaintiff Peggy L. Gibbs to dismiss without prejudice under Fed. R. Civ. P. 41(a)(2) 64 is GRANTED. This matter is DISMISSED WITHOUT PREJUDICE and WITHOUT COSTS TO ANY PARTY. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Patrick J. Schiltz on 10/26/10. (bjs)

Gibbs v. Breg, Inc. et al

Doc. 71

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA PEGGY L. GIBBS, Plaintiff, v. BREG, INC.; LMA NORTH AMERICA, INC.; I-FLOW CORPORATION; DJO, LLC; DJO INCORPORATED; MCKINLEY MEDICAL LLC; MOOG INC.; CURLIN MEDICAL, INC; STRYKER CORP.; and STRYKER SALES CORP., Defendants. Case No. 10-CV-0671 (PJS/FLN)

ORDER

Plaintiff Peggy Gibbs moves to dismiss this case voluntarily, without prejudice, and without costs to any party under Fed. R. Civ. P. 41. Only one defendant, I-Flow Corporation ("IFlow"), opposes the motion. Because of I-Flow's opposition, Gibbs's motion to dismiss is governed by Fed. R. Civ. P. 41(a)(2). The Court grants the motion. Under Rule 41(a)(2), where -- as here -- no defendant has filed a counterclaim, a district court may dismiss a case without prejudice at the plaintiff's request "on terms that the court considers proper." Whether to grant such a motion is within the court's discretion. Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984). In deciding whether to grant a Rule 41(a)(2) dismissal, a court considers factors such as: (1) the effort and expense the defendant has incurred; (2) the plaintiff's diligence, or lack thereof, in moving the case forward; (3) the plaintiff's explanation for seeking dismissal; and (4) whether the defendant has moved for summary judgment. Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987). -1-

Dockets.Justia.com

In this case, Gibbs says that she wishes to dismiss the case and "does not seek to continue this litigation, re-file, or transfer this case." Pl. Mem. Supp. Mot. Dism. at 3 [Docket No. 65]. Although this statement would be more consistent with a dismissal with prejudice than a dismissal without prejudice, the Court finds that it adequately explains Gibbs's desire for a dismissal. And given the preliminary stage of the case, I-Flow has not been required to expend significant effort on its defense. Indeed, although I-Flow contends that it "expended considerable time and expense preparing and filing its responsive pleading to the Complaint," Def. Mem. Opp. Pl. Mot. Dism. at 4 [Docket No. 69], I-Flow does not contend that it was required to do anything other than prepare an answer to the complaint. Particularly given that I-Flow is a named defendant in many other similar product-liability lawsuits in this District, the Court finds that IFlow's costs and fees in answering Gibbs's complaint cannot have been so substantial that they merit an award of costs and fees to I-Flow. Further, in Kern v. TXO Production Corp., even when the plaintiff dismissed a case without prejudice during trial, the Eighth Circuit did not require the plaintiff to pay the defendant's costs and fees as a condition of dismissal. 738 F.2d at 972. Instead, Kern upheld a district court's dismissal without prejudice under Rule 41(a)(2), but ordered the district court on remand to conditionally require the plaintiff to pay the defendant's costs and fees if, in the future, the plaintiff re-filed the suit. Id. ("On remand, [the district court] should determine the amount of defendant's costs . . . and fees reasonably incurred up through the order of dismissal. Plaintiff need not be required to pay any amount now. But she should be required to make a payment to defendant as a condition of maintaining a second action, if she decides to file one and does so within the relevant period of limitations."). In light of Kern -- an important case that I-Flow did -2-

not discuss, or even cite, in opposing Gibbs's motion -- and given the circumstances of this case, the Court sees no reason to award I-Flow the costs and fees it seeks. ORDER Based on the foregoing, and on all of the files and records herein, IT IS HEREBY ORDERED that: 1. The motion of plaintiff Peggy L. Gibbs to dismiss without prejudice under Fed. R. Civ. P. 41(a)(2) [Docket No. 64] is GRANTED. 2. This matter is DISMISSED WITHOUT PREJUDICE and WITHOUT COSTS TO ANY PARTY. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: October 26, 2010 s/Patrick J. Schiltz Patrick J. Schiltz United States District Judge

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