McNelly v. Monsanto Company

Filing 30

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that, on or before December 1, 2017, Plaintiff must either withdraw his motion to dismiss without prejudice or move to dismiss the case with prejudice. Failure to so file will result in the dismissal of this action with prejudice. Signed by District Judge Audrey G. Fleissig on 11/21/2017. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GLEN MCNELLY,

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Plaintiff,
v.
MONSANTO COMPANY,
Defendant.

No. 4:17-CV-01511-AGF

MEMORANDUM & ORDER
This matter is before the Court on Plaintiff Glen McNelly’s motion to dismiss
without prejudice. ECF No. 23. Defendant Monsanto Company opposed the motion.
ECF No. 25. Plaintiff filed a reply. ECF No. 27.
On November 20, 2017, the Court held a hearing on Plaintiff’s motion in lieu of a
Rule 16 Conference. Plaintiff argued that he sought voluntary dismissal without
prejudice in order to re-file the action in state court. Counsel contended such dismissal
was proper because the case was in the early stages of litigation and Defendant would not
be prejudiced by such a dismissal. Plaintiff acknowledged that he wished to refile in state
court to avoid possible transfer to a multi-district litigation (MDL) proceeding in
California. Defendant argued that dismissal without prejudice was improper because
dismissal following the filing of an answer to obtain a more favorable forum is not a
proper basis for dismissal without prejudice. The Court agrees for the reasons set forth
on the record and more fully in this order.
The decision of whether to grant a voluntary dismissal without prejudice is within

the sound discretion of the district court. Metropolitan Fed. Bank of Iowa v. W.R. Grace
& Co., 999 F.2d 1257, 1262 (8th Cir. 1993). “In reviewing a request for voluntary
dismissal, a court 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 defendant.”
Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212, 1213–14 (8th Cir. 2011). “Likewise,
a party is not permitted to dismiss merely to escape an adverse decision nor to seek a
more favorable forum.” Id.; Cahalan v. Rohan, 423 F.3d 815, 818 (8th Cir. 2005).
Plaintiff is correct that this case is at a relatively early stage of litigation. The
matter was filed on May 15, 2017, Defendant filed its answer on July 5, 2017, and the
parties were scheduled to participate in a Rule 16 Conference. 1 Generally, the early
dismissal of a case would not result in prejudice to Defendant. However, the Eighth
Circuit has made it clear that it is inappropriate for a plaintiff to use voluntary dismissal
as an avenue for seeking a more favorable forum. Thatcher, 659 F.3d at 1214.
Here, Plaintiff admits in his reply and at oral argument that the sole reason for the
dismissal is to avoid federal court and the possibility of the case being transferred to an
MDL. ECF No. 27. This is improper, particularly in light of the fact that Plaintiff filed
his lawsuit in this forum. Moreover, Defendant has not filed a motion to transfer the case
to an MDL, and counsel for Defendant stated at the hearing that it may not do so. If
Defendant does file a motion to transfer the matter to an MDL, Plaintiff will have the

1

Plaintiff filed his Complaint in this Court, and the case was reassigned to the
undersigned on August 16, 2017. ECF No. 11.
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opportunity to object to the transfer and explain why his case is distinguishable from the
other Round-up cases pending before the MDL.
Forum shopping may be appropriate in the narrow instance where Plaintiff desires
to voluntarily dismiss an action so that related actions may be heard in a single forum.
See Self v. Equinox Holdings, Inc., No. CV1404241MMMAJWX, 2015 WL 13298146, at
*8 (C.D. Cal. Jan. 5, 2015). However, this is not why Plaintiff is seeking voluntary
dismissal. Instead, Plaintiff hopes to avoid the possibility of consolidation of his case
with other Round-up cases across the country. Therefore, the Court will allow Plaintiff to
withdraw his motion to dismiss without prejudice.
Accordingly,
IT IS HEREBY ORDERED that, on or before December 1, 2017, Plaintiff must
either withdraw his motion to dismiss without prejudice or move to dismiss the case with
prejudice. Failure to so file will result in the dismissal of this action with prejudice.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 21st day of November, 2017.

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