Masterson v. Prairie County Hospital District et al

Filing 26

FINDINGS AND RECOMMENDATIONS. IT IS RECOMMENDED that Masterson's 24 MOTION for Dismissal Without Prejudice be GRANTED, each party to bear its own fees and costs. Judge Magistrate Carolyn S Ostby termed case no longer referred. Signed by Magistrate Carolyn S Ostby on 12/23/2013. (Hard copy mailed to L. Masterson.) (JDH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
LARRY LEE MASTERSON,

CV-13-05-BLG-SEH-CSO

Plaintiff,
FINDINGS AND
RECOMMENDATION

vs.
PRAIRIE COUNTY HOSPITAL
DISTRICT and GLENDIVE
MEDICAL CENTER, INC.,
Defendants.

This pro se employment discrimination action was filed on
January 8, 2013. On July 24, 2013, the Court issued a Scheduling
Order that imposed a discovery deadline of February 21, 2014, and
related deadlines. ECF 21.
On November 12, 2013, Plaintiff Larry Lee Masterson
(“Masterson”) filed a Motion to Dismiss Without Prejudice. ECF 24.
Defendants do not oppose dismissal, but contend that the dismissal
should be with prejudice or, in the alternative, conditioned on an award
of fees and costs to the Defendants. ECF 6, n. 1. For the reasons set
forth below, the Court recommends that the Masterson’s motion be
granted.
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I.

PARTIES’ ARGUMENTS
Masterson explains that his dismissal motion is based upon: (1)

“a severe exacerbation of [his] disability,” including “a significant lose
[sic] of cognitive abilities” such that he is unable to conduct adequate
pro se representation; (2) living with friends away from Billings,
Montana makes travel and other costs of self-representation cost
prohibitive; and (3) he is awaiting final determination of an EEOC
investigation. ECF 24. Masterson attaches to his motion an
uncertified letter from a clinical psychologist who opines that “Mr.
Masterson will [not]1 be able to manage the cognitive demands that
would be required for self-advocacy in a court proceeding [nor be]
capable of sustaining himself under the emotional demands of this
complex set of tasks.” ECF 24-1 at 2.
Defendants agree that the matter should be dismissed but request
that the Court dismiss the matter with prejudice. Defendants have not
filed a motion to dismiss with prejudice. Defendants explain that
Masterson has not complied with court rules in that he did not file a
preliminary pretrial statement, did not serve required initial

1

Although the letter uses the word “now”, it is clear from the
context that the intended word was “not”. ECF 24-1.
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disclosures pursuant to Fed.R.Civ.P. 26(a), and has not responded to
Defendants’ discovery requests. ECF 25 at 2-3. Defendants contend
they would be prejudiced by dismissal without prejudice because of
Masterson’s deemed admissions resulting from his failure to respond to
discovery.
II.

ANALYSIS
Absent stipulation by the parties, Fed.R.Civ.P. 41(a)(2) provides

that after an opposing party serves either an answer or a motion for
summary judgment, “an action may be dismissed at the plaintiff’s
request only by court order, on terms that the court considers proper.”
The determination of whether a dismissal is to be with or without
prejudice is a matter vested in the sound discretion of the court. See
Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2002).
The Ninth Circuit Court of Appeals has held that a district court
should grant a motion for voluntary dismissal under Rule 41(a)(2)
unless a defendant can show that it “will suffer some plain legal
prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir.
2001) (cited with approval in WPP Luxembourg Gamma Three Sare v.
Spot Runner, Inc., 655 F.3d 1039, 1058 n.6 (9th Cir. 2011)). “Legal

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prejudice” means “prejudice to some legal interest, some legal claim,
some legal argument.” Id. at 976. Uncertainty or the threat of future
litigation do not result in plain legal prejudice. Nor does legal prejudice
result merely because the defendant will be inconvenienced by having
to defend in another forum or where a plaintiff would gain a tactical
advantage by that dismissal. Id.
Defendants here may be inconvenienced by dismissal without
prejudice, and they may lose a tactical advantage by having to serve
new discovery requests if the case is ultimately refiled, but these
factors do not require denial of Masterson’s motion. This is particularly
so where the reason for Masterson’s voluntary dismissal is his apparent
inability to handle his legal matters pro se. Thus, because Defendants
have not shown that they will suffer some plain legal prejudice, the
Court concludes that Masterson’s motion should be granted. See Clark
v. Happy Days, LLC, 2011 WL 61180 *2 (W.D. La. 2011).
The second question that must be addressed under Rule 41(a)(2)
is what terms should be fashioned for the dismissal. It is common for
courts to require that the plaintiff pay the costs of the litigation as a
condition of dismissal. See generally Wright & Miller, Federal Practice

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and Procedure: Civil 3d § 2366 at 527. The Ninth Circuit has ruled
that a court has the discretion to condition a dismissal without
prejudice upon the payment of “appropriate costs and attorney fees.”
Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996).
But the payment of fees is neither mandatory nor a prerequisite to a
Rule 41(a) dismissal. Id. at 97. And the Ninth Circuit has noted that
Rule 41(a)(2) itself does not provide statutory authority for the
imposition of sanctions upon dismissal. See Heckethorn v. Sunan Corp.
992 F.2d 240, 242 (9th Cir. 1993).
Although this action has been pending nearly a year, it does not
appear that Defendants or their lawyers have expended considerable
time and expense in the case. From a review of the docket, it appears
that Masterson has propounded no discovery; no depositions have been
taken; and no substantive motions have been filed or briefed.
Additionally, Masterson is proceeding in forma pauperis and thus is
unlikely to be able to afford such payments. Thus, the Court concludes
that no imposition of fees and costs is appropriate at this time. See
Pendergrass v. Clanton, 2008 WL 2079144 (D. Mont. 2008).
Masterson should be aware, however, that should he decide to

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refile this action, a court considering a similar request for costs or
sanctions will consider this first voluntary dismissal and may indeed
award costs and fees if appropriate.
III. CONCLUSION
For the reasons set forth above, IT IS RECOMMENDED that
Masterson’s Motion for Dismissal Without Prejudice (ECF 24) be
GRANTED, each party to bear its own fees and costs.
NOW, THEREFORE, IT IS ORDERED that the Clerk of Court
shall serve a copy of these Findings and Recommendation upon the
parties. The parties are advised that pursuant to 28 U.S.C. § 636, any
objections to these Findings and Recommendation must be filed with
the Clerk of Court and copies served on opposing parties within
fourteen (14) days after service hereof, or objection is waived.
DATED this 23rd day of December, 2013.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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