Jeffries et al v. Missouri Metals, LLC et al

Filing 77

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Individual Plaintiff Elaine Gibson's Motion to Dismiss Without Prejudice 38 , Individual Plaintiff Noble Griffins Motion to Dismiss Without Prejudice 43 , Individual Plaintiff Denise Watsons Mot ion to Dismiss Without Prejudice 48 , Plaintiffs Noreen Jackson and Malinuh Jacksons Motion to Dismiss Without Prejudice 59 ,Plaintiff June Jeffries Motion to Dismiss Without Prejudice 60 , and Plaintiffs Alberta Clark, Larney Shannon, Harold and Juanita Millers Motion to Dismiss Without Prejudice 62 are GRANTED in part with the conditions set forth herein. That is, if Plaintiffs refile this or a similar action, they will be required to pay to Defendants all the costs of this action, inclu ding the reasonable attorneys fees Defendants expended in defending it, to be determined at the time of the new filing. IT IS FURTHER ORDERED the Courts prior orders of dismissal (ECF Nos. 40, 44, and 50) are VACATED. IT IS FURTHER ORDERED that this matter is DISMISSED without prejudice. IT IS FURTHER ORDERED that Plaintiffs Motion for Leave to Amend their Petition, for Joinder, and Remand to the County of St. Louis 56 , Plaintiffs Respect [sic] for Clarification 64 , Defendants Motion to En force the Courts April 21, 2014 Order and Compel Property Inspections and Memorandum in Support 68 , Defendants Motion for Leave to File Surreply in Opposition to Plaintiffs Motion to Amend their Petition, for Joinder, and Remand 69 , and Plaintiffs' Motion for a Protective Order in View of Defendants Request for Costs and Plaintiffs' Pending Motions and Motion for Stay 72 are DENIED as moot. Signed by District Judge John A. Ross on 5/8/14. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
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JUNE JEFFRIES, et al.,
Plaintiffs,
v.
MISSOURI METALS, LLC, et al.,
Defendant.

No. 4:13-CV-1921 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Individual Plaintiff Elaine Gibson’s Motion to Dismiss
Without Prejudice (ECF No. 38), Individual Plaintiff Noble Griffin’s Motion to Dismiss Without
Prejudice (ECF No. 43), Individual Plaintiff Denise Watson’s Motion to Dismiss Without
Prejudice (ECF No. 48), Plaintiffs Noreen Jackson and Malinuh Jackson’s Motion to Dismiss
Without Prejudice (ECF No. 59), Plaintiff June Jeffries’ Motion to Dismiss Without Prejudice
(ECF No. 60), and Plaintiffs Alberta Clark, Larney Shannon, Harold and Juanita Miller’s Motion
to Dismiss Without Prejudice (ECF No. 62).1
Background

1

The Court notes that it previously granted Individual Plaintiff Elaine Gibson’s Motion to
Dismiss Without Prejudice (ECF No. 38), Individual Plaintiff Noble Griffin’s Motion to Dismiss
Without Prejudice (ECF No. 43), and Individual Plaintiff Denise Watson’s Motion to Dismiss
Without Prejudice (ECF No. 48). See ECF Nos. 40, 44, and 50. Because there has been no final
judgment in this case, the Court hereby vacates those dismissal orders (ECF Nos. 40, 44, and 50)
and enters this Order to add conditions to the dismissal of these plaintiffs.
The Court ordered Plaintiffs to file any reply in support of Plaintiffs Noreen Jackson and
Malinuh Jackson’s Motion to Dismiss Without Prejudice (ECF No. 59), Plaintiff June Jeffries’
Motion to Dismiss Without Prejudice (ECF No. 60), and Plaintiffs Alberta Clark, Larney
Shannon, Harold and Juanita Miller’s Motion to Dismiss Without Prejudice (ECF No. 62) no
later than Tuesday, May 6, 2014. To date, no reply has been filed.

On or around August 21, 2013, Plaintiffs filed a Petition in the Circuit Court of St. Louis
County, Missouri. (ECF No. 8). On September 27, 2013, Defendants removed this action to this
Court, asserting diversity jurisdiction. (ECF No. 1). On December 31, 2013, Plaintiffs filed a
First Amended Petition for Damages, alleging claims for Nuisance (Count I), Trespass (Count
II), and Negligence (Count III) due to alleged contamination of their property by Defendants.
(ECF No. 30).
Over a series of weeks in March and April 2014, the ten individual plaintiffs have filed
motions to dismiss their claims without prejudice: Individual Plaintiff Elaine Gibson’s Motion to
Dismiss Without Prejudice (ECF No. 38), Individual Plaintiff Noble Griffin’s Motion to Dismiss
Without Prejudice (ECF No. 43), Individual Plaintiff Denise Watson’s Motion to Dismiss
Without Prejudice (ECF No. 48), Plaintiffs Noreen Jackson and Malinuh Jackson’s Motion to
Dismiss Without Prejudice (ECF No. 59), Plaintiff June Jeffries’ Motion to Dismiss Without
Prejudice (ECF No. 60), and Plaintiffs Alberta Clark, Larney Shannon, Harold and Juanita
Miller’s Motion to Dismiss Without Prejudice (ECF No. 62). On March 10, 2014, the Court
granted Individual Plaintiff Elaine Gibson’s Motion to Dismiss Without Prejudice (ECF No. 40).
On April 4, 2014, the Court granted Individual Plaintiff Noble Griffin’s Motion to Dismiss
Without Prejudice (ECF No. 44). On April 4, 2014, Individual Plaintiff Denise Watson’s Motion
to Dismiss Without Prejudice (ECF No. 43), which the Court granted on April 8, 2014 (50).
On April 7, 2014, Defendants filed a Motion to Compel Property Inspections,
Depositions, Interrogatory Answers, Responses to Requests for Production and Document
Productions from All Plaintiffs and For Other Relief (ECF No. 45). In their Motion, Defendants
asserted that Plaintiffs provided incomplete discovery and failed to schedule dates for
depositions or for property inspections. Defendants also noted that Plaintiffs’ counsel had been

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obstructionist and uncommunicative regarding these discovery deficiencies. On April 15, 2014,
Plaintiffs filed their Motion for Leave to Amend their Petition, for Joinder, and Remand to the
County of St. Louis (ECF No. 56), seeking to remand this action to the Circuit Court of St. Louis
County, Missouri, based upon lack of federal diversity jurisdiction.2 On April 18, 2014, the
Court held a conference call with the parties regarding Defendants’ Motion to Compel. (ECF
Nos. 55, 58). At the inception of the conference, Plaintiffs’ counsel indicated their desire to
discuss their Motion to Remand, rather than the Motion to Compel. The Court took up only the
Motion to Compel and ordered Plaintiffs to supplement the discovery responses of Plaintiffs
Noreen Jackson, June Jeffries, Juanita Miller and Harold Miller; provide to Defendants the
discovery responses of Malinuh Jackson and Alberta Clark; schedule Rule 34 property
inspections in May 2014; and supplement Plaintiffs’ disclosures of nonretained experts in
accordance with Rule 26(a)(2). (ECF No. 58). Since that conference call and the Court’s Order
on the Motion to Compel, the remaining individual Plaintiffs have moved for dismissal without
prejudice. (ECF No. 59, 60, 62).
Plaintiffs seek dismissal pursuant to Fed.R.Civ.P. 41(a)(2) because they believe that they
need to secure new evidence; they wish to add new defendants; they believe “additional litigation
may be necessary;” they think the “accelerate[d]” pace of the present litigation is prejudicial to
Plaintiffs; they assert they “should not be forced to press their claim;” and they think Defendants
would not be prejudiced by the dismissal. (ECF No. 66). Plaintiffs also note that, on April 8,
2014, Defendants stated that they had “no objection to voluntary dismissals of June Jeffries,
Noreen Jackson, and Malinuh Jackson.” (ECF No. 66-1).
2

Plaintiffs also sought to add as an additional defendant Missouri resident Edward G.
Broadfield, which may have impacted diversity between the parties. Defendants notified the
Court that they opposed remand. (ECF No. 63). Defendants claimed that Mr. Broadfield was
neither necessary nor indispensable to these proceedings.
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Defendants, however, argue that a dismissal without prejudice would be prejudicial to
them and a waste of judicial time and resources. Defendants assert that Plaintiffs are seeking to
dismiss this federal action so that they can seek a more favorable forum in state court.
Moreover, Defendants assert that Plaintiffs wish to dismiss this action to avoid complying with
their outstanding discovery obligations just months before the close of discovery. (ECF No. 70).
Defendants contend that this Court should not dismiss Plaintiffs because it is evident that they
have demonstrated excessive delay and dilatory tactics in prosecuting this case. Defendants
further maintain that they will be substantially prejudiced by a dismissal due to the resources
they have expended in defending this action and the extreme likelihood that they will be forced
to defend another action in state court. Defendants admit that they agreed to a dismissal of June
Jeffries, Noreen Jackson, and Malinuh Jackson on April 8, 2014. Defendants, however, assert
that they withdrew their consent after Plaintiffs filed their Motion for Joinder and Remand and
additional motions to dismiss because it is evident that Plaintiffs are trying to divest this Court of
its jurisdiction and refile this action in state court. (ECF No. 70 at 2, n.2). Finally, if the Court is
nevertheless inclined to grant Plaintiffs’ motions to dismiss, then Defendants request that the
Court condition dismissal without prejudice on Plaintiffs’ payment of Defendants’ costs and fees
in the event the action is refiled, and that such action be filed in federal court. (ECF No. 70 at 1215).
Discussion
Motions under Fed.R.Civ.P. 41(a)(2) to dismiss without prejudice are addressed to the
sound discretion of the district court, Herring v. City of Whitehall, 804 F.2d 464, 466 (8th Cir.
1986), which may attach “such terms and conditions” to the granting of a motion for voluntary
dismissal as the Court “deems proper.” See Rule 41(a)(2). “In exercising that discretion, a court

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should consider factors such as 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.” Koener v. Johnson & Johnson, No.
4:06CV1420 HEA, 2007 WL 3026903, at *1 (E.D.Mo. Oct. 16, 2007) (quoting Hamm v. RhonePoulenc Rorer Pharmaceuticals, 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).
Upon granting a voluntary dismissal, the Court has the authority to award costs and
reasonable attorneys’ fees to a defendant that were incurred in defending the action prior to the
dismissal. Pruiett v. Doe, 4:12-CV-1813-SPM, 2013 WL 1342369, at *2 (E.D. Mo. Apr. 3,
2013) (citing Belle–Midwest, Inc. v. Mo. Prop. & Cas. Ins. Guarantee Ass'n, 56 F.3d 977, 978–
79 (8th Cir.1995)). Alternatively, the Court may grant the voluntary dismissal but order that, if
the plaintiff chooses to re-file the action against the defendant at a later date, then the plaintiff
must pay the defendant's fees and costs associated with the dismissed action. Pruiett, 2013 WL
1342369, at *2 (citing Core v. Sw. Bell Tele. Co., 847 F.2d 497, 498 (8th Cir.1988)); see also,
Kirkman v. Witt, No. 4:12CV1704 CDP, 2013 WL 2898184, *2 (E.D.Mo. June 13, 2013).
Under the circumstances of this case, the Court finds dismissal without prejudice is
appropriate. Here, the case was on file for less than a year when Plaintiffs sought voluntary
dismissal and it does not appear to the Court that the parties have engaged in extensive discovery
activities, other than some paper discovery. See ECF No. 45 (Defendants’ Motion to Compel);
ECF No. 68 (Motion to Enforce the Court’s April 21, 2014 Order and Compel Property

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Inspections). The Court does not believe that the case progressed to a point where Defendant
would be legally prejudiced by a dismissal without prejudice pursuant to Rule 41(a)(2).
The Court nevertheless believes that a dismissal with conditions is warranted. The Court
is cognizant of the significant time and efforts expended by Defendants to defend this action, as
well as Plaintiffs’ desire to prosecute this case in another forum.

In this case, the Court

acknowledges that an unconditional dismissal could prejudice Defendants, particularly because
Plaintiffs have indicated in their Motion to Remand and other filings their desire to litigate this
case in state court. If circumstances cause Plaintiff to re-file this or a similar action against
Defendants, thereby imposing duplicative expenses on Defendants, then it is appropriate that
conditions be imposed on the dismissal. If Plaintiffs refile this or a similar action, the Court
orders that Plaintiffs must pay to Defendants all the costs of this action, including the reasonable
attorneys’ fees Defendants expended in defending it, to be determined at the time of the new
filing. The Court finds this condition will adequately protect Defendants from the burden and
expense of defending the same cause of action multiple times. Pruiett, 2013 WL 1342369, at *3.
If Plaintiffs fail to comply fully and timely with this condition, the Court may dismiss the refiled
action with prejudice for failure to comply with the orders of the Court. See Rule 41(b).
Because the action will be dismissed, all other pending motions will be denied as moot.
Accordingly,
IT IS HEREBY ORDERED that Individual Plaintiff Elaine Gibson’s Motion to Dismiss
Without Prejudice [38], Individual Plaintiff Noble Griffin’s Motion to Dismiss Without
Prejudice [43], Individual Plaintiff Denise Watson’s Motion to Dismiss Without Prejudice [48],
Plaintiffs Noreen Jackson and Malinuh Jackson’s Motion to Dismiss Without Prejudice [59],
Plaintiff June Jeffries’ Motion to Dismiss Without Prejudice [60], and Plaintiffs Alberta Clark,

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Larney Shannon, Ha
S
arold and Ju
uanita Mille Motion to Dismiss Without Pr
er’s
rejudice [62 are
2]
GRANT
TED in part with the co
onditions set forth herei
t
in. That is, if Plaintiff refile this or a
,
fs
s
similar action, they will be requ
a
w
uired to pay to Defendan all the costs of this action, inclu
nts
uding
the reaso
onable attorn
neys’ fees De
efendants ex
xpended in d
defending it, to be determ
mined at the time
e
of the new filing.
w
IT IS FURT
T
THER ORDERED the Court’s prio orders of dismissal (E
C
or
ECF Nos. 40 44,
0,
and 50) are VACATED.
a
IT IS FURTH
T
HER ORDE
ERED that this matter is DISMISSE without prejudice.
t
s
ED
IT IS FURTH
T
HER ORDE
ERED that Plaintiffs’ M
P
Motion for Le
eave to Ame their Pet
end
tition,
for Joind
der, and Remand to the County of St. Lo
R
t
ouis [56], P
Plaintiffs’ R
Respect [sic for
c]
Clarificat
tion [64], Defendants’ Motion to En
M
nforce the C
Court’s April 21, 2014 O
l
Order and Co
ompel
Property Inspections and Memorandum in Support [68] Defendant Motion f Leave to File
s
S
],
nts’
for
o
Surreply in Oppositi to Plaint
ion
tiffs’ Motion to Amend their Petitio for Joind and Rem
n
on,
der,
mand
[69], and Plaintiffs’ Motion for a Protective Order in Vie of Defen
d
M
ew
ndants’ Requ for Cost and
uest
ts
Plaintiffs Pending Motions and Motion for Stay [72] are DENIED a moot.
s’
M
S
e
as

JOHN A ROSS
A.
UNITE STATES DISTRICT JUDGE
ED
S
T

Dated thi 8th day of May, 2014.
is
f
.

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