Drahos v. Budget Rent A Car System, Inc. et al

Filing 48

MEMORANDUM AND ORDER re: 45 MOTION to Dismiss Case Without Prejudice filed by Plaintiff Gail Drahos. IT IS HEREBY ORDERED that plaintiff's motion to dismiss [#45] is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 10/14/20. (CSG)

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Case: 4:19-cv-00921-SNLJ Doc. #: 48 Filed: 10/14/20 Page: 1 of 3 PageID #: 213

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GAIL DRAHOS,

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Plaintiff,
v.
BUDGET RENT A CAR SYSTEM, INC,
et al.,
Defendants.

Case No. 4:19cv921 SNLJ

MEMORANDUM and ORDER

Plaintiff brought this lawsuit against defendants seeking to recovery for injuries
she allegedly sustained on defendants' property. She initially sued defendants Budget
Rent-a-Car System, Inc. and Avis Rent A Car System, LLC in Missouri state court. The
parties were engaged in discovery when plaintiff filed a motion to dismiss without
prejudice [#45]. Plaintiff filed the motion to dismiss because she says the defendants'
Rule 30(b)(6) witness testified that defendant Avis controlled the premises at the time of
the incident but that neither defendant had any employees present on premises at the time
of the incident. She seeks to dismiss the lawsuit because, she said, neither defendant is a
proper party and they would not be prejudiced by dismissal.
Plaintiffs motion is brought under Federal Rule of Civil Procedure 41(a)(2). That
rule states that, under the present circumstances, "an action may be dismissed at the
plaintiffs request only by court order, on terms that the court considers proper," and

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"[u]nless the order states otherwise, a dismissal under this paragraph (2) is without
prejudice."
Defendants oppose the dismissal without prejudice. They note that plaintiff filed a
new lawsuit against non-party Avis Budget Group, Inc. employees John Prachyl and
Herb Torres related to her injuries sustained on Avis's property. The lawsuit was filed in
Missouri state court on August 12, 2020, over 17 months after she filed the instant
lawsuit. 1 Just after filing her new lawsuit, plaintiff added as a defendant Avis Budget
Group, Inc.. Avis Budget Group is a holding company for the Avis and Budget
defendants here. Defendants contend plaintiff is going to great lengths to avoid federal
jurisdiction and the upcoming trial date in March 2021.
Plaintiff did not file a reply in support of her motion to dismiss. If plaintiff truly
believed that the defendants in this case were not proper parties, she could dismiss them
with prejudice. Under Rule 41(a)(2), this Court may grant her dismissal without
prejudice, or it may require that dismissal be with prejudice. § 2367 Voluntary

Dismissal-Effect ofDismissal, 9 Fed. Prac. & Proc. Civ. § 2367 (4th ed.) ("If the
plaintiff either moves for dismissal without prejudice or fails to specify whether the
request is for dismissal with or without prejudice, the matter is left to the court's
discretion.").
A decision whether to allow a party to voluntarily dismiss a case rests upon
the sound discretion of the court. In exercising that discretion, 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
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Avis Budget Group removed the second lawsuit to this Court on October 2, 2020, and it has
been assigned to the undersigned. See Drahos v. Prachyl, No. 20-cv-1424-SNLJ.
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waste of judicial time and effort; and whether a dismissal will prejudice the
defendants. Likewise, a party is not permitted to dismiss merely to escape
an adverse decision nor to seek a more favorable forum.
Thatcher v. Hanover Ins. Group, Inc., 659 F.3d 1212, 1213-14 (8th Cir. 2011) (quoting
Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 950 (8th Cir.1999) (internal
citations omitted)).
Looking to those factors, this Court will not grant the motion to dismiss without
prejudice. Plaintiff does not adequately explain why defendant A vis, which owns and
operates the premises on which plaintiff says she was injured, is improper. Defendants
suggest plaintiff did not name the two A vis and Budget defendants in her new case
because, with the current case pending, Missouri Supreme Court Rule 55.27(a)(9) would
prohibit such a claim-but that she could add them if this case were dismissed. That
would effectively re-start the litigation for defendants. Defendants maintain they will be
prejudiced by plaintiffs re-starting the litigation with only six weeks of discovery
remaining and the trial date fewer than six months away. This Court agrees. Plaintiff has
established none of the factors allowing for dismissal without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion to dismiss [#45] is DENIED.

Dated thist:ffti<lay of October, 2020.

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STEifHEN N. LIMBAUGH,.
UNITED STATES DISTRICT JUDGE

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