Johnson v. IBEW Local 1 et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to dismiss his claims without prejudice [# 35 ] is DENIED. Signed by Honorable Catherine D. Perry on February 3, 2012. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RONALD D. JOHNSON,
INTERNATIONAL BROTHERHOOD )
OF ELECTRICAL WORKERS,
LOCAL 1, et al.,
Case No. 4:10CV2111 CDP
MEMORANDUM AND ORDER
This matter is before the court on the plaintiff’s motion to voluntarily
dismiss this case, without prejudice, pursuant to Federal Rule of Civil Procedure
41(a)(2). The defendants oppose this motion and instead ask for a dismissal with
prejudice and an award of costs and attorneys’ fees.
Plaintiff Ronald Johnson filed his complaint on November 8, 2010,
asserting two claims: (1) the defendant retaliated against Johnson for engaging in
protected union speech and assembly in violation of 29 U.S.C. § 411; and (2) the
defendant discriminated against him because of his race in violation of 42 U.S.C. §
1981. The defendants filed a motion to dismiss the complaint on November 30,
2010. I granted that motion with respect to count I because Johnson did not allege
that he engaged in any relevant union activity, but I allowed Johnson to proceed
on count II. On March 31, 2011, Johnson filed an amended complaint, again
claiming violations of 29 U.S.C. § 411 and 42 U.S.C. § 1981, but also adding a
claim for a violation of ERISA. On May 19, 2011, Johnson voluntarily dismissed
his claims against one defendant, Local No. 1, IBEW, Pension Benefit Fund.
A Rule 16 Scheduling Conference was held on September 9, 2011, after
which discovery began. The defendants responded to interrogatories and requests
for production on November 4, 2011, and they supplemented those answers on
November 29, 2011. In the process, they incurred $2,163.16 in attorneys’ fees and
$267.60 in copying costs. In turn, the defendant sent a request for production and
interrogatories to the plaintiff and also scheduled a date for his deposition. The
plaintiff requested extensions of time to respond, but he then filed this motion to
dismiss the case before responding to any discovery requests or appearing for a
In his reply brief, the plaintiff explains that he seeks this voluntary dismissal
because of unfavorable facts developed through the discovery process. The
defendants oppose the dismissal without prejudice on the grounds that they have
incurred significant expense in defending this matter and that they will be
prejudiced if plaintiff is allowed to refile at a later time.
Once a defendant has answered the complaint in a case, “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); see also Hamm v. Rhone-Poulenc
Rorer Pharm., Inc., 187 F.3d 941, 950 (8th Cir. 1999). “The purpose of Rule
41(a)(2) is primarily to prevent voluntary dismissals which unfairly affect the
other side. Courts generally will grant dismissals where the only prejudice the
defendant will suffer is that resulting from a subsequent lawsuit.” Paulucci v. City
of Duluth, 826 F.2d 780, 782 (8th Cir. 1987). Courts should consider the
following factors in determining whether to grant a plaintiff’s motion for
voluntary dismissal: (1) whether the defendant has expended considerable effort
and expense in preparing for trial; (2) whether the plaintiff exhibited “excessive
delay and lack of diligence” in prosecuting the case; (3) whether the plaintiff has
presented a sufficient explanation for the desire to dismiss; and (4) whether the
defendant has filed a motion for summary judgment. Id. at 783. The Eighth
Circuit has specified that a showing of “plain legal prejudice” is required to deny a
dismissal without prejudice, which requires more than a showing that the plaintiff
will gain a tactical advantage as a result of its action. Hoffman v. Alside, Inc., 596
F.2d 822, 823 (8th Cir. 1979) (per curiam). If a court intends to instead dismiss
the case with prejudice, it “must give the plaintiff notice of its intention and a
chance to withdraw the request and proceed with litigation.” Jaramillo v.
Burkhart, 59 F.3d 78, 79 (8th Cir. 1995).
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. See Sequa Corp. v. Cooper, 245 F.3d 1036, 1038 (8th Cir.
2001). The Eighth Circuit has stated that “district courts typically impose the
condition that plaintiff pay the defendant the reasonable attorney’s fees incurred in
defending the suit.” Belle-Midwest, Inc. v. Mo. Prop. & Cas. Ins. Guarantee
Ass’n, 56 F.3d 977, 978-79 (8th Cir. 1995). “In fact, [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 plaintiff’s payment of costs and attorney’s
fees if the case is refiled.” Id. at 979 (citing Kern v. TXO Prod. Corp., 738 F.2d
968, 972 (8th Cir. 1984) (granting fees for all legal work that would have to be
redone if plaintiff were to later decide to refile, when the dismissal was filed
Balancing the factors in this case warrants denial of the plaintiff’s motion to
dismiss without prejudice. The defendants have incurred significant expense and
have expended a substantial amount of time and effort in defending this case. The
majority of these costs have been incurred in complying with plaintiff’s extensive
discovery requests. These costs and efforts appear especially disparate
considering that the plaintiff has not responded to any discovery requests, except
for initial disclosures required by Federal Rule of Civil Procedure 26(a)(1). This
also supports denial of the motion under the second factor, since the plaintiff
appears to have delayed the prosecution of this case and has not been as diligent as
possible. The defendants reported, and plaintiff did not dispute, that the plaintiff
has twice requested additional time to respond to discovery requests and canceled
a previously scheduled deposition because of this motion to dismiss. These events
resulted in the complete failure to plaintiff to produce any documents or other
evidence throughout the discovery process.
Furthermore, under the third factor, plaintiff has not presented a sufficient
reason for filing this motion to dismiss without prejudice. Although the plaintiff
apparently filed the motion to dismiss after receiving facts in discovery that were
unfavorable to his case, defendants argued that they made plaintiff’s counsel
aware of much of this information before suit was filed. Additionally, if plaintiff’s
basis for filing this motion to dismiss is a lack of evidence and support for its
claims, then there is no reason that the dismissal should not be granted instead
with prejudice. Though there has not yet been a summary judgment motion filed,
as discussed in the fourth factor, the other three factors sufficiently support denial
of the plaintiff’s motion to dismiss this case without prejudice.
Plaintiff may, of course, alternatively choose to file a motion to dismiss this
case with prejudice at any time. Unless he does so, however, he is obligated to
comply with the Case Management Order and the Federal Rules of Civil
Procedure, and must begin participating in discovery forthwith.
IT IS HEREBY ORDERED that plaintiff’s motion to dismiss his claims
without prejudice [#35] is DENIED.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of February, 2012.
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