Parshall v. Menard, Inc.

Filing 100

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendant/third party plaintiff Menard, Inc. to dismiss its third party claim without prejudice [Doc. # 87 ] is denied. Signed by District Judge Carol E. Jackson on 3/31/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICHARD PARSHALL,
Plaintiff,
vs.
MENARD, INC. d/b/a MENARDS,
Defendant/Third-Party Plaintiff,
vs.
DANIEL STREIBERG,
Third-Party Defendant.

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Case No. 4:16-CV-828 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendant Menard, Inc. to
dismiss its claim against third-party defendant Daniel Streibig1 without prejudice.
Streibig has responded in opposition and the matter is fully briefed.
This action arises from an incident that occurred on December 23, 2014 in
which merchandise fell from a display and struck plaintiff Richard Parshall at the
defendant’s store in Ballwin, Missouri.

Plaintiff alleges that defendant failed to

properly secure the merchandise in the display. Menard alleges that Streibig was
negligent in handling the merchandise and is thus liable for plaintiff’s injury.
Rule 41(a)(2) allows for dismissal of an action at the plaintiff's request “only
by court order, on terms that the court considers proper.” The rule is primarily
intended to prevent a plaintiff from voluntarily dismissing a lawsuit when such a
1

The parties appear to agree that the third-party defendant’s name is “Streibig” not
“Streiberg.”

dismissal would “unfairly affect” the defendant. See Paulucci v. City of Duluth, 826
F.2d 780, 782 (8th Cir.1987). Courts generally will grant dismissals where the only
prejudice the defendant will suffer is that resulting from a subsequent lawsuit. Id.
The types of prejudice that would justify denying a motion to voluntarily
dismiss include: (1) emotional and psychological trauma associated with the
experience of defending another lawsuit; (2) the prejudice resulting from
uncertainty over title to land; and (3) the absence of a justification for the proposed
dismissal. Id. at 783. A district court should also consider the following factors: (1)
whether the plaintiff has presented a proper explanation for the desire to dismiss;
(2) whether the defendant has expended considerable effort and expense in
preparing for trial; (3) whether the plaintiff exhibited “excessive delay and lack of
diligence” in prosecuting the case; and (4) whether the defendant has filed a
motion for summary judgment. Id. at 783. In general, a district court should not
grant a motion for voluntary dismissal merely because a plaintiff seeks a more
favorable forum or wishes to escape an adverse decision. Moore v. W.W. Transp.,
No. 4:10-CV-2203 CEJ, 2011 WL 3425605, at *1 (E.D. Mo. Aug. 4, 2011).
The aforementioned factors weigh against dismissal. Defendant fails to
provide any justification or explanation for its desire to dismiss at this time. The
parties have expended considerable effort and expense in the discovery process.
Streibig notes that the litigation has been ongoing for over a year and suggests that
defendant’s motive for seeking a dismissal is to avoid Court-ordered discovery.
Streibig also has a pending motion for summary judgment. There is no indication
that defendant has exhibited excessive delay or lack of diligence in prosecuting the
case.

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Upon reviewing the factors set forth in Paulucci, the Court finds that
defendant Menard has failed to show that Streibig would not be prejudiced by the
dismissal.
Accordingly,
IT IS HEREBY ORDERED that the motion of defendant/third party plaintiff
Menard, Inc. to dismiss its third party claim without prejudice [Doc. #87] is
denied.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 31st day of March, 2017.

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