Estate of Marty Lynn Rainey et al v. Ste. Genevieve County et al

Filing 50

MEMORANDUM AND ORDER re: 30 First MOTION for Sanctions filed by Plaintiff Estate of Marty Lynn Rainey, 46 MOTION for Extension of Time to File Response/Reply as to 39 MOTION for Summary Judgment filed by Pla intiff Lynn Marie Rainey, 36 First MOTION for Sanctions filed by Plaintiff Lynn Marie Rainey, 31 MOTION to Strike Plaintiff's Expert, Melissa Ussery filed by Defendant Richard Mayfield, Defendant Abigail Brewer, Defen dant Devon Hattenhauer, Defendant Stephanie Memhardt, Defendant Kyle Burt, Defendant Andrew Johnson, Defendant Amber Vonderhaair, Defendant Dan McCaffrey, Defendant Ste. Genevieve County, Defendant Norma Ellison, Defendant Gary Stolzer, Def endant Alex Ketner, Defendant Anthony Delrasario, Defendant Anthony Brown, Defendant Gabe Puhse, Defendant Loren Gugel, Defendant Mike Sansoucie, Defendant Kristen Carrow, Defendant Ryan Richie, Defendant Curtis Weinhold, Defendant Nick Ems , Defendant Dustin Edwards, 39 MOTION for Summary Judgment filed by Defendant Richard Mayfield, Defendant Abigail Brewer, Defendant Stephanie Memhardt, Defendant Devon Hattenhauer, Defendant Kyle Burt, Defendant Andrew Johnson, De fendant Dan McCaffrey, Defendant Amber Vonderhaair, Defendant Ste. Genevieve County, Defendant Norma Ellison, Defendant Gary Stolzer, Defendant Anthony Delrasario, Defendant Alex Ketner, Defendant Gabe Puhse, Defendant Anthony Brown, Defend ant Loren Gugel, Defendant Mike Sansoucie, Defendant Kristen Carrow, Defendant Ryan Richie, Defendant Curtis Weinhold, Defendant Nick Ems, Defendant Dustin Edwards, 42 First MOTION to Dismiss Case filed by Plaintiff Estate of Mar ty Lynn Rainey. IT IS HEREBY ORDERED that Plaintiffs' Motion for Sanctions and Hearing (ECF No. 36) is DENIED. IT IS FURTHER ORDERED that Plaintiffs' Motion to Dismiss without Prejudice (ECF No. 42) is GRANTED.IT IS FURTHER ORDERED that as condition of dismissal Defendants shall submit abill of costs and an itemization of attorney's fees consistent with this Order within ten (10) days of the date that Plaintiffs refile the action in state or federal court. IT IS FURTHER ORDERED th at Plaintiffs' Motion to Enforce Discovery and for Sanctions (ECF No. 30) is DENIED as MOOT. IT IS FURTHER ORDERED that Defendants' Motion to Strike Plaintiffs' Designation of Melissa Ussery as an Expert (ECF No. 31) and Motion for Summary Judgment (ECF No. 39)are DENIED as MOOT. IT IS FINALLY ORDERED that this cause of action is DISMISSED without prejudice. Signed by District Judge Ronnie L. White on 8/27/18. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ESTATE OF MARTY LYNN RAINEY, et al.,

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Plaintiffs,
v.
STE. GENEVIEVE COUNTY, et al.,
Defendants.

No. 1:17CV96 RLW

MEMORANDUM AND ORDER OF DISMISSAL
This matter is before the Court on Plaintiffs' Motion for Sanctions and Hearing (ECF No.
36) and Motion for Leave to Dismiss without Prejudice (ECF No. 42). Defendants have filed
responses in opposition, and Plaintiffs have filed reply briefs.
On June 2, 2017, Plaintiffs filed a Complaint in federal court seeking monetary damages
related to the death of Marty Lynn Rainey while he was incarcerated at the Ste. Genevieve
County Jail. (ECF No. 1) Plaintiffs filed an Amended Complaint on November 20, 2017 and a
Second Amended Complaint on February 21, 2018. (ECF Nos. 16, 23) On July 13, 2018,
Defendants filed a Motion to Strike Plaintiffs Designation of Melissa Ussery as an Expert.
(ECF No. 31) As part of their response in opposition to the motion to strike, Plaintiffs filed a
Motion for Sanctions and Hearing on July 26, 2018, alleging that their designated expert,
Melissa Ussery, informed Plaintiffs that she could not serve as Plaintiffs' expert based on a direct
order from her employer, Greene County Sheriff Jim Arnott. (ECF. No. 36) According to
Plaintiffs, Defendant Gary Stolzer called Sheriff Amott to inform Arnott that Ms. Ussery was
providing private expert services outside her duties as a staff psychologist for the Greene County
Sheriffs Department. (Id) Plaintiffs request that as a sanction, the Court strike Defendants'
pleadings and proceed with a trial on damages alone.
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On August 10, 2018, Plaintiffs filed the instant motion to voluntarily dismiss their cause
of action without prejudice as alternate relief in the event the Court denied their motion for
sanctions. (ECF No. 42) On August 17, 2018, Defendants filed a response in opposition,
asserting that Defendants would be prejudiced if the Court allowed Plaintiffs to dismiss their
Complaint at this late date because Defendants have expended considerable effort and expense in
defending the case. (ECF No. 47) Defendants ask the Court to deny Plaintiffs' motion, or in the
alternative, to award Defendants' costs and attorneys' fees accrued in this matter. In Plaintiffs'
reply, they contend that the need for dismissal arises from the actions of Defendant Gary Stolzer
and that Plaintiffs will pay costs ifthe suit is refiled. (ECF No. 48)
Under Rule 41ofthe Federal Rules of Civil Procedure, "an action may be dismissed at the
plaintiffs request only by court order, on terms that the court considers proper." Fed. R. Civ. P.
41(a)(2). "Voluntary dismissals pursuant to Federal Rule of Civil Procedure 41(a)(2), and the
terms of such dismissals, are addressed to the discretion of the district courts." Garner v. Union
Pac. R.R. Co., No. 4:15CV00733 AGF, 2016 WL 612765, at *2 (E.D. Mo. Feb. 16, 2016)
(citation omitted). When considering a motion for voluntary dismissal, courts consider:
"whether the party has presented a proper explanation for its desire to dismiss;
whether a dismissal would result in a waste of judicial time and effort; and
whether a dismissal will prejudice the defendants. Likewise, a party is not
permitted to dismiss merely to escape an adverse decision nor to seek a more
favorable forum."
Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212, 1213-14 (8th Cir. 2011) (quoting Hamm v.
Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 950 (8th Cir. 1999)).
Here, Plaintiffs set forth their reasons in the motion to dismiss, asserting that they no
longer have an expert witness to testify regarding causation to support Plaintiffs' wrongful death
claims, and the deadline for naming experts has expired. Plaintiffs request that if the Court is not
inclined to grant their motion for sanctions, the Court should dismiss the action without
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prejudice. Plaintiffs assert that they will comply with any applicable rules regarding payment of
costs should they refile the case in state or federal court.
Upon review of the motions and related memoranda, the Court finds that this cause of
action should be dismissed. While the Court sympathizes with Plaintiffs' loss of their expert,
nothing in their motion for sanctions indicates conduct on the part of Defendant Gary Stolzer
which would warrant striking the defenses of all named Defendants and proceeding on damages
alone. Further, the Court notes that the motion for summary judgment is not fully briefed such
that the Court has not yet addressed the motion. However, the Court also finds that the
imposition of fees and costs as a condition of dismissal is appropriate, as Plaintiffs' motion
indicates their intent to possibly refile the case in state or federal court.
"Upon granting a voluntary dismissal, a court may, in its discretion, award costs to the
defendant that were incurred in defending the action prior to the voluntary dismissal." Johnson

v. Int'/ Bhd. Of Elec. Workers, Local 1, No. 4:10CV2111CDP,2012 WL 368713, at *2 (E.D.
Mo. Feb. 3, 2012) (citing Sequa Corp. v. Cooper, 245 F.3d 1036, 1038 (8th Cir. 2011)). This
includes imposing the condition that the plaintiff pays reasonable attorney's fees incurred by
defendant in defending the suit. Id. (citation omitted). The Eighth Circuit "has held that under
certain circumstances, it is an abuse of discretion for a district court not to condition a voluntary
dismissal upon plaintiffs payment of costs and attorney's fees if the case is refiled." Belle-

Midwest, Inc. v. Missouri Prop. & Cas. Ins. Guar. Ass'n, 56 F.3d 977, 978 (8th Cir. 1995)
(citation omitted). "However, the district court may deduct from such an award 'any expenses
[the defendant] incurred in the instant action for work that can be reused in the subsequent
litigation."' Garner v. Union Pac. R.R. Co., No. 4:15CV00733 AGF, 2016 WL 612765, at *3
(E.D. Mo. Feb. 16, 2016) (quoting Pruiett v. Doe, No. 4:12-CV-1813-SPM, 2013 WL 1342369,
at *3 (E.D. Mo. Apr. 3, 2013)).
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Here, the Court finds that an award of costs and attorney's fees is warranted. The case
has been pending for over a year, and substantial discovery has been conducted. Defendants
incurred costs in defending this action before Plaintiffs filed the motion for voluntary dismissal.
In the event that Plaintiffs refile this or a similar action, the Court will award Defendants their
costs and attorney's fees, less any expenses incurred for work that can be reused in the
subsequent litigation, as a condition of dismissal. Sequa Corp., 245 F.3d at 1038; Garner, 2016
WL 612765, at *3.
According! y,
IT IS HEREBY ORDERED that Plaintiffs' Motion for Sanctions and Hearing (ECF

No. 36) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs' Motion to Dismiss without Prejudice

(ECF No. 42) is GRANTED.
IT IS FURTHER ORDERED that as condition of dismissal Defendants shall submit a

bill of costs and an itemization of attorney's fees consistent with this Order within ten (10) days
of the date that Plaintiffs refile the action in state or federal court.
IT IS FURTHER ORDERED that Plaintiffs' Motion to Enforce Discovery and for
Sanctions (ECF No. 30) is DENIED as MOOT.
IT IS FURTHER ORDERED that Defendants' Motion to Strike Plaintiffs' Designation

of Melissa Ussery as an Expert (ECF No. 31) and Motion for Summary Judgment (ECF No. 39)
are DENIED as MOOT.

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IT IS FINALLY ORDERED that this cause of action is DISMISSED without
prejudice.
Dated this 27th day of August, 2018.

fi.ONNIELWHITE
UNITED STATES DISTRICT JUDGE

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