Bekkouche v. United Rentals, Inc. et al

Filing 34

ORDER granting 29 motion to dismiss case. The dismissal is without prejudice unless (1) the defendant submits a proper bill of costs and (2) the plaintiff fails to pay such costs. Signed on 8/20/12 by Magistrate Judge John T. Maughmer. (Alexander, Pam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
Ahmed Bekkouche,
Plaintiff,
v.
United Rental, Inc., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Civil Action Number
11-00282-CV-SJ-JTM

ORDER
Pending before the Court is the MOTION TO DISMISS WITHOUT PREJUDICE [Doc. 29] filed
by plaintiff Ahmed Bekkouche (“Bekkouche”). Defendants United Rentals (North America),
Inc. and United Rental Northwest, Inc. (collectively referred to as “United Rentals”) 1 oppose the
dismissal and alternatively seek summary judgment. Essentially, United Rentals asserts that the
case is too far advanced to permit Bekkouche to simply “walk away” with a dismissal without
prejudice.
After a defendant has filed an answer or motion for summary judgment, a plaintiff may
voluntarily dismiss a case with the consent of all of the parties [FED. R. CIV. P. 41(a)(1)(A)(ii)] or
by order of the Court [FED. R. CIV. P. 41(a)(2)]. With regard to the latter:
(1)

the Court’s order may include terms that the Court
considers proper, and

(2)

the Court’s order operates as a dismissal without
prejudice unless otherwise noted.

FED. R. CIV. P. 41(a)(2). It is “axiomatic” that a dismissal under Rule 41(a)(2) “is not one of
right but is rather a matter for the discretion of the trial court.” United States v. Gunc, 435 F.2d
1

Another defendant, Skyjack, Inc., has not yet entered an appearance.

465, 467 (8th Cir. 1970). Having carefully considered the parties’ arguments, the Court has
determined to grant Bekkouche’s motion to dismiss this action without prejudice subject to one
term.
The purpose of FED. R. CIV. P. 41(a)(2) is “primarily to prevent voluntary dismissals
which unfairly affect the other side.” Paulucci v. City of Duluth, 826 F.2d 780, 782 (8th Cir.
1987). To that end, court consider several factors when evaluating a Rule 41(a)(2) request to
dismiss without prejudice:
(1) the defendant's effort and the expense involved in preparing for
trial, (2) excessive delay and lack of diligence on the part of the
plaintiff in prosecuting the action, (3) insufficient explanation of
the need to take a dismissal, and (4) the fact that a motion for
summary judgment has been filed by the defendant.
Witzman v. Gross, 148 F.3d 988, 922 (8th Cir.1998). When granting a voluntary dismissal
district courts may – and often do -- condition the dismissal on a plaintiff's payment of costs and
attorney's fees if the case is refiled. Belle-Midwest, Inc. v. Missouri Property & Cas. Ins.
Guarantee Ass'n, 56 F.3d 977, 978 (8th Cir.1995). But see Kern v. TXO Production Corp., 738
F.2d 968, 971-72 (8th Cir.1984) (noting that although the payment of expenses and a reasonable
attorney fee may properly be a condition for a Rule 41(a)(2) dismissal, “the omission of such
condition is not necessarily an arbitrary act”).
In this case, the Court does not condition Bekkouche’s dismissal on the payment of
United Rentals’ attorney fees, but does require the payment of costs. In that regard, the Federal
Rules of Civil Procedure provide:
Unless a federal statute, these rules, or a court order provides
otherwise, costs – other than attorney’s fees – should be allowed to
the prevailing party. . . . The clerk may tax costs on 14 days’
notice. On motion served within the next 7 days, the court may
review the clerk’s action.

2

FED. R. CIV. P. 54(d)(1). See also 28 U.S.C. § 1920 (defining the narrow expenses that a federal
court may tax as a court cost under the discretionary authority found in Rule 54(d)). Moreover,
the law is generally well-settled that:
[E]ven though [a] Court’s dismissal of plaintiffs’ claim was
without prejudice and was not a dismissal on the merits,
defendants are “prevailing parties” for purposes of taxing costs.
Anderson v. Christian Hosp. Northeast-Northwest, 100 F.R.D. 497, 498 (E.D. Mo. 1984).
For the foregoing reasons, it is
ORDERED that plaintiff’s motion to dismiss, filed April 2, 2012 [Doc. 29] is
GRANTED. The dismissal is without prejudice unless (1) the defendant submits a proper bill
of costs and (2) the plaintiff fails to pay such costs.

/s/ John T. Maughmer

John T. Maughmer
United States Magistrate Judge

3

,