Johnson et al v. AT&T Corporation

Filing 30

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs' motion for remand is DENIED. (Doc. No. 6.) IT IS FURTHER ORDERED that the Clerks Office shall send Plaintiffs a Financial Affidavit form that litigants seeking the appointment of counsel are required to complete and submit along with a motion for appointment of counsel. Plaintiffs shall have up to and including July 7, 2014, to complete and submit such form and move for the appointment of counsel, should they wish to do so. If Plaintiffs fail to do so, the Court will grant Plaintiffs' motion for voluntary dismissal without prejudice, with the condition noted above. (Response to Court due by 7/7/2014.) Signed by District Judge Audrey G. Fleissig on 6/27/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CARLYN M JOHNSON, et al.,
Plaintiffs,
v.
AT&T CORPORATION,
Defendant.

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No. 4:14CV00697 AGF

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiffs’ motion to remand the case to state
court, and Plaintiffs’ motion for voluntary dismissal without prejudice if the case is not
remanded. Plaintiffs, husband and wife, filed this action pro se in Missouri state court
(small claims court) on March 6, 2014, asserting a claim against Defendant (Plaintiff Carlyn
Johnson’s former employer) for breach of contract related to charging Carlyn Johnson,
beginning in 2013, for medical benefits by taking deductions from her pension plan.
Plaintiffs sought recovery in the amount of $1,899.00 plus interest and attorney’s fees.
On April 4, 2014, Defendant removed the action to this Court based on federal
question jurisdiction in that the action arises under the federal Employee Retirement Income
Security Act (“ERISA”). Plaintiffs move to remand the case to state court. They maintain
that they should not be forced to proceed in federal court, especially in light of the small
amount of recovery sought. In a separate motion, they move to voluntarily dismiss their
action without prejudice if the Court denies the motion to remand.
The Court first concludes that removal was timely and that the basis for removal is

valid. See, e.g., Kress v. Dutchtown S. Cmty. Corp., No. 4:11CV01537 HEA, 2012 WL
2374710, at *3 (E.D. Mo. June 22, 2012) (denying the plaintiffs’ motion to remand a case
characterized by the plaintiffs as a breach of contract case, where the claims related to an
employee benefit plan governed by ERISA). Accordingly, the Court will deny Plaintiffs’
motion to remand.
Plaintiffs’ alternative motion for voluntary dismissal without prejudice is addressed
to the sound discretion of the district court, which may attach to the granting of the motion
such “terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Upon granting a
voluntary dismissal, the Court has the authority to award costs and reasonable attorney’s
fees to a defendant that were incurred in defending the action prior to the dismissal. Pruiett
v. Doe, 4:12CV01813 SPM, 2013 WL 1342369, at *2 (E.D. Mo. Apr. 3, 2013) (citing BelleMidwest, 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 refile 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. Id. at *2.
Here the Court believes that if it were to grant Plaintiffs’ motion for voluntary
dismissal without prejudice, it would be appropriate to do so with the condition that if
Plaintiffs refile this or a substantially identical action against Defendant in either state or
federal court, they be required to pay Defendant its costs of this action, including reasonable
attorney’s fees, to be determined at the time of the new filing.
In Plaintiffs’ recent filings, however, it appeared to the Court that Plaintiffs may be
indigent and might qualify for the appointment of counsel who could represent Plaintiffs

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pro bono in this court proceeding. As such, the Court will withhold ruling on Plaintiffs’
motion for voluntary dismissal without prejudice to give Plaintiffs the opportunity to move
for the appointment of counsel, should they believe they qualify financially for such
appointment.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion for remand is DENIED.
(Doc. No. 6.)
IT IS FURTHER ORDERED that the Clerk’s Office shall send Plaintiffs a
Financial Affidavit form that litigants seeking the appointment of counsel are required to
complete and submit along with a motion for appointment of counsel. Plaintiffs shall have
up to and including July 7, 2014, to complete and submit such form and move for the
appointment of counsel, should they wish to do so. If Plaintiffs fail to do so, the Court will
grant Plaintiffs’ motion for voluntary dismissal without prejudice, with the condition noted
above.
Dated this 27th day of June, 2014.

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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