Zorich v. St. Louis County et al

Filing 49

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to voluntarily dismiss without prejudice pursuant to Fed.R.Civ.P. 41(a)(2) is granted on the condition that all discovery obtained in this case shall be used in any subsequent litigation based on the same claims asserted here. Signed by District Judge Carol E. Jackson on 1/17/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANGELA ZORICH,
Plaintiff,
vs.
COREY ZAVORKA, et al.,
Defendants.

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No. 4:15-CV-871 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to voluntarily dismiss her
case without prejudice. Defendants have filed a response in opposition and the
issues are fully briefed.
I.

Background

On April 29, 2014, the St. Louis County Police Tactical Response Unit
executed a search warrant at plaintiff’s home in St. Louis County. Plaintiff alleges
that defendant Robert Rinck, a St. Louis County police officer assigned to the
“problem properties unit,” obtained the warrant even though she had agreed to
make arrangements for him to inspect her home. Plaintiff further alleges that the
Tactical Response Unit battered in her front door while she and other family
members, including a child, were present. Defendant Corey Zavorka, the first
officer who entered the home, shot and fatally wounded the family dog.
On June 2, 2015, plaintiff filed this action pursuant to 42 U.S.C. § 1983,
claiming that defendants Rinck and Zavorka violated her rights under the Fourth,
Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff also
asserts state law tort claims. On August 18, 2015, the Court dismissed plaintiff’s

claim that St. Louis County was liable for the constitutional violations committed by
the individual defendants based on the theory of respondeat superior. [Doc. # 17].
On October 28, 2015, plaintiff file a motion for leave to amend her complaint to add
three new defendants, assert a new claim against defendant Zavorka, and assert
three claims against St. Louis County for municipal liability. On November 14, 2016,
the Court denied plaintiff’s motion for leave to amend for failure to establish good
cause to modify the Case Management Order as required by Fed.R.Civ.P. 16(b). On
December 5, 2016, plaintiff filed this motion to voluntarily dismiss without
prejudice.
II.

Discussion

Federal Rule of Civil Procedure 41(a)(2) provides that after a defendant has
served its answer, “an action may be dismissed at the plaintiff’s request only by
court order, on terms that the court considers proper.” When deciding whether to
exercise its discretion to allow a voluntary dismissal, the “district court should
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.” Mullen v. Heinkel Filtering Sys.,
Inc., 770 F.3d 724, 727–28 (8th Cir. 2014) (internal quotations and citations
omitted). “A party is not permitted to dismiss merely to escape an adverse decision
nor to seek a more favorable forum.” Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th
Cir. 2013) (citation omitted).
Plaintiff offers three explanations in support of her motion to dismiss. First, in
February 2016, her primary attorney withdrew from the representation to accept
other

employment.

Although

three

attorneys

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subsequently

entered

their

appearance on plaintiff’s behalf, two of the three anticipate being unavailable to
assist in the representation and the third did not enter his appearance until July
2016. Plaintiff acknowledges that the anticipated departure of two of her attorneys
is speculative, but argues that waiting for their actual departure will preclude
voluntary dismissal. Second, plaintiff claims to have learned new information during
witness depositions on November 30, 2016, including that an unknown officer
aimed a gun at the head of plaintiff’s son during the execution of the warrant. As
defendant notes, the witnesses in question were plaintiff’s sons and the mother of
her grandson.

It is unknown whether the witnesses failed to disclose this

information earlier to plaintiff’s counsel and, if so, why they failed to disclose it.
Finally, plaintiff contends that the denial of her motion to amend her complaint will
require her to file a separate lawsuit and engage in dual litigation, which would
waste judicial resources.
Given the seriousness of the allegations and the number of potential
defendants, the Court finds that plaintiff has offered proper explanations for
dismissal and is not seeking a more favorable forum. Although plaintiff seeks
dismissal to avoid the Court’s order denying her leave to file an amended
complaint, this factor has little significance where, as here, a plaintiff intends to
pursue the rejected claims in a separate lawsuit. Indeed, dismissal will permit
plaintiff to proceed in a single lawsuit, which will greatly promote judicial efficiency
and reduce litigation expenses for all parties.
Defendants argue that they will be prejudiced by dismissal because they
have expended substantial time and expense on their defense. They represent that
they have completed the depositions of all the fact witnesses they intend to pursue.

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In addition, defendants argue that the threat of ongoing litigation amounts to
unwarranted prejudice. Legal prejudice means “something other than the necessity
that defendant might face of defending another action.” Mullen, 770 F.3d at 728
(citation omitted). Similarly, the expense and effort of drafting and responding to
discovery prior to dismissal does not constitute legal prejudice. Id. With respect to
defendants’ contention that the litigation is advanced, the Court notes that
discovery remains open, the deadline for filing dispositive motions is more than a
month away, and trial is not set until August 2017.
Rule 41(a)(2) allows a court to dismiss an action upon terms that the court
deems proper. Here, defendants ask that the Court require plaintiff to pay costs as
a condition of any dismissal. The Court declines to do so.

However, to avoid

unnecessary expense, the parties will not be required to re-depose witnesses or
engage in other repetitive discovery.

Therefore, as a condition of dismissal, all

discovery obtained in this case shall be used in any subsequent litigation based on
the same claims asserted here.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to voluntarily dismiss
without prejudice pursuant to Fed.R.Civ.P. 41(a)(2) is granted on the condition
that all discovery obtained in this case shall be used in any subsequent litigation
based on the same claims asserted here.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 17th day of January, 2017.
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