G.C. et al v. South Washington County School District 833 et al

Filing 58

ORDER granting 44 Motion to Dismiss (Written Opinion) Signed by Senior Judge David S. Doty on 6/5/2018. (DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-3680 (DSD/TNL)
G.C. and J.C. by their friend
and Mother Angela Tsiang,
Plaintiffs,
v.

ORDER

South Washington County School
District 833, and Dr. Keith Jacobus,
Superintendent of the South Washington
County School 833,
Defendants.
John J.E. Markham, II, Esq. and Markham & Read, One Commercial
Wharf West, Boston, MA 02110, counsel for plaintiffs.
John P. Edison, Esq. and Rupp, Anderson, Squires &
Waldspurger,
333
South
Seventh
Street,
Suite
2800,
Minneapolis, MN 55402, counsel for defendants.

This matter is before the court upon the motion to dismiss
without prejudice by plaintiff J.C.1

Defendants South Washington

County School District 833 and Dr. Keith Jacobus, Superintendent of
the South Washington County School 833 contest the motion, arguing
that the claim brought by J.C. should be dismissed with prejudice.
Based on a review of the file, record, and proceedings herein, and
for the following reasons, the motion is granted.

1

J.C. is nine years old and will be referred to by his
initials to protect his privacy. Plaintiff G.C. is also a minor
and will be referred to by his initials.

BACKGROUND
This

civil

rights

dispute

arises

out

of

the

claim

by

plaintiffs G.C. and J.C., by their next friend and mother Angela
Tsiang, that they suffer from Electromagnetic Hypersensitivity
Syndrome (EHS) caused by radio waves emitted by Wi-Fi, cell towers,
cell phones, and other electronic devices.

According to the

amended complaint, G.C. and J.C., who attend different schools
within the school district, were exposed to radio waves in their
respective classrooms which caused them to suffer various symptoms
of EHS. Am. Compl. ¶ 33. For example, G.C. experienced headaches,
dizziness,

digestive

problems,

difficulty concentrating.

Id.

nosebleeds,

skin

rashes,

and

J.C., the younger of the children,

suffered from headaches, stomachaches, sleeping problems, and
nosebleeds.

Id.

Tsiang requested various accommodations from the

school district to minimize her children’s exposure to radio waves
while at school.2

Id. ¶¶ 34-35, 37.

The school district initially

made some changes to meet her requests, but later informed her that
it

did

not

accommodation.

believe

that

EHS

is

a

disability

requiring

Id. ¶ 37.

On August 11, 2017, plaintiffs commenced this suit.

They

amended the complaint on September 5, 2017. Plaintiffs allege that
defendants’ failure to accommodate violates the Americans with

2

The court will not repeat in detail the many communications
and meetings between Tsiang and defendants given the nature of the
motion.
2

Disabilities Act, 42 U.S.C. § 12101, et seq.

They seek an

injunction ordering defendants to meet and confer with Tsiang to
determine reasonable accommodations to address G.C.’s and J.C.’s
disability. They also seek attorney’s fees and costs and any other
remedies available under the ADA. Defendants promptly answered the
amended complaint.3

ECF No. 20.

The parties have since completed fact discovery and have
exchanged expert disclosures.4
Edison Decl. ¶ 4.

ECF No. 38 ¶¶ 1(b), 3(d); Second

The dispositive deadline is August 1, 2018, but

as of yet neither party has filed a motion for summary judgment.
ECF No. 38 ¶ 5(a).
On March 14, 2018, counsel for plaintiffs informed defendants
that he planned to move to dismiss J.C. from the case without
prejudice.

Second Edison Decl. Ex. 4.

Counsel for defendants

responded the same day asking for the basis for the proposed
dismissal and later agreed to discuss the matter by telephone. Id.
On March 26, 2018, counsel for defendants informed plaintiffs’
counsel that defendants were unwilling to agree to J.C.’s dismissal
from the case without prejudice because it would leave open the

3

Plaintiffs filed a motion for preliminary injunction the
same day they filed the amended complaint. ECF No. 14. They later
withdrew the motion before the hearing date to allow more time to
develop their evidence with respect to G.C.’s and J.C.’s diagnosis.
ECF No. 34.
4

The parties are due to take expert depositions soon.
No. 38 ¶ 3(e).
3

ECF

possibility of subsequent litigation. ECF No. 47, Ex. A. J.C. now
moves for dismissal without prejudice under Federal Rule of Civil
Procedure 41(a)(2).

DISCUSSION
Under Rule 41(a)(2), once an answer has been filed, an action
may be dismissed at the plaintiff’s request only upon order of the
court and “on terms that the court considers proper.” “The purpose
of Rule 41(a)(2) is primarily to prevent voluntary dismissals which
unfairly affect the other side.”
F.2d 780, 782 (8th Cir. 1987).
motion

to

voluntarily

Paulucci v. City of Duluth, 826

In determining whether to grant a

dismiss

without

prejudice,

the

court

considers several factors including whether (1) the moving party
has presented a proper basis for its desire to dismiss, (2)
dismissal would result in a waste of judicial time and effort, and
(3) dismissal will prejudice the defendants. Hamm v. Rhone–Poulenc
Rorer Pharms., Inc., 187 F.3d 941, 950 (8th Cir. 1999). “[A] party
is not permitted to dismiss merely to escape an adverse decision or
to seek a more favorable forum.”

Id.

Dismissal under Rule

41(a)(2) is within the sound discretion of the court. Great Rivers
Co-op of Se. Iowa v. Farmland Indus., Inc., 198 F.3d 685, 689 (8th
Cir. 1999).
J.C.

argues

that

his

case

should

be

dismissed

without

prejudice for three reasons. First, because of his young age, J.C.

4

has a less-developed history of EHS, which will affect his ability
to establish his claim.

Pl’s. Mem. at 3.

Second, the added cost

of pursuing his claim will be a financial hardship to his family.
Id.

Third, the outcome of G.C.’s case will necessarily affect any

claim J.C. may have going forward, which would minimize or negate
any prejudice to defendants. Id. Specifically, if the court rules
that EHS is a recognized disability that G.C. suffers from,
defendants are also likely to provide reasonable accommodations to
J.C. without resort to litigation.

Id.

And, if the court decides

that EHS is not a disability, J.C. would be foreclosed from pursing
a future claim on the same basis.

Id.

The court finds J.C.’s arguments compelling.

He has provided

a proper explanation for his motion, and the court is not persuaded
that

there

has

been

a

waste

of

judicial

resources

or

undue

prejudice to defendants. The court is mindful that defendants have
devoted substantial resources in this case, some of which are
directly attributable to defending against J.C.’s claim, but the
legal and factual issues presented overlap to a significant degree,
which minimizes any perceived waste or prejudice. Nor is the court
convinced by defendants’ argument that J.C. is likely to pursue
future

litigation

regardless

of

the

outcome

of

G.C.’s

case.

Although he may well do so, as J.C. has explained, G.C.’s case will
very likely dictate J.C.’s rights going forward, regardless of
which

party

prevails.

In

any

5

event,

the

threat

of

future

litigation is insufficient to establish undue prejudice.

See

Paulucci, 826 F.2d at 782 (“Courts generally will grant dismissals
where

the

only

prejudice

the

defendant

will

suffer

is

that

resulting from a subsequent lawsuit.”).
As a result, the court finds that dismissal without prejudice
is warranted under Rule 41(a)(2).

The court declines to award

defendants their attorney’s fees and costs incurred in defending
J.C.’s claim given the overlap between J.C.’s and G.C.’s claims.

CONCLUSION
Accordingly, based on above, IT IS HEREBY ORDERED that:
1.

The motion to dismiss without prejudice [ECF No. 44] is

granted; and
2.

J.C. is dismissed from this matter without prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: June 5, 2018
s/David S. Doty
David S. Doty, Judge
United States District Court

6