Janke v. Election Systems & Software, LLC

Filing 24

MEMORANDUM AND ORDER - The Plaintiff's Motion to Dismiss Complaint (filing 23 ) is granted. The plaintiff's complaint is dismissed with prejudice. The Defendant's Motion to Dismiss (filing 5 ) is denied as moot. The defendant's motion for sanctions under Fed. R. Civ. P. 11 (filing 14 ) is denied. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (Copy e-mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLY G. JANKE,
Plaintiff,

8:15-CV-231

vs.
MEMORANDUM AND ORDER
ELECTION SYSTEMS AND
SOFTWARE, LLC,
Defendant.
This matter is before the Court on the Plaintiff's Motion to Dismiss
Complaint (filing 23), the Defendant's Motion to Dismiss (filing 5), and the
defendant's motion for sanctions under Fed. R. Civ. P. 11 (filing 14). The
Court will grant the plaintiff's motion and deny the defendant's motions.
First, the plaintiff has moved to voluntarily dismiss his complaint. He
has a right to do so, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), because the
defendant has not yet filed an answer or a motion for summary judgment.
The plaintiff also requested that the case be dismissed "with prejudice."
Filing 23 at 1, 3. Although a Rule 41(a)(1) dismissal is presumably without
prejudice, the dismissal may be with prejudice if "the notice or stipulation
states otherwise[.]" Rule 41(a)(1)(B). The plaintiff's notice in this case does
state otherwise, so the dismissal will be with prejudice.
Because the plaintiff is voluntarily dismissing his complaint with
prejudice, the defendant's motion to dismiss is moot, and will be denied as
such. That leaves the defendant's motion for Rule 11 sanctions, which the
defendant claims are warranted because the plaintiff's claims are frivolous
and, according to the defendant, were "filed only to harass" the defendant.
Filing 14 at 2. The defendant seeks to recover, among other things, its
attorney fees and costs in defending the action. Filing 14 at 2.
Rule 11 sanctions may be warranted when a pleading is presented for
any improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation; contains allegations or factual
contentions that lack evidentiary support; or contains denials of factual
contentions that are not warranted on the evidence. See, Fed. R. Civ. P. 11(b);
Clark v. United Parcel Serv., Inc., 460 F.3d 1004, 1008 (8th Cir. 2006). And in
determining whether a pleading was frivolous, groundless, or advanced for an
improper purpose, the Court must apply a standard of objective

reasonableness. Pulaski Cnty. Republican Comm. v. Pulaski Cnty. Bd. of
Election Comm'rs, 956 F.2d 172, 173 (8th Cir. 1992). But the primary
purpose of Rule 11 sanctions is to deter misconduct, not to compensate the
opposing party for all of its costs in defending. Kirk Capital Corp. v. Bailey,
16 F.3d 1485, 1490 (8th Cir. 1994).
Being fully advised in the premises, the Court declines to order Rule
11(c) sanctions in this case. While the plaintiff's complaint may not have been
objectively reasonable, a sanction imposed under Rule 11 "must be limited to
what suffices to deter repetition of the conduct or comparable conduct by
others similarly situated." Rule 11(c)(4). The plaintiff has already voluntarily
dismissed his case, with prejudice, and the Court finds it unnecessary to
impose a sanction beyond that. The Court also notes that among the other
relief requested by the defendant is that the plaintiff be ordered "to not file
any further frivolous claims or lawsuits" against the defendant. Filing 14 at
2. While the Court is not imposing such a condition pursuant to Rule 11(c),
the Court notes Fed. R. Civ. P. 41(d), which provides that
If a plaintiff who previously dismissed an action in any court files
an action based on or including the same claim against the same
defendant, the court:
(1) may order the plaintiff to pay all or part of
the costs of that previous action; and
(2) may stay the proceedings until the plaintiff has
complied.
(Emphasis supplied.) Obviously, because the plaintiff dismissed his claim
with prejudice, he should not refile it in any event. But if he were to try
again, he could be required to pay the defendant's costs from this proceeding.
IT IS ORDERED:
1.

The Plaintiff's Motion to Dismiss Complaint (filing 23) is
granted.

2.

The plaintiff's complaint is dismissed with prejudice.

3.

The Defendant's Motion to Dismiss (filing 5) is denied as
moot.

4.

The defendant's motion for sanctions under Fed. R. Civ. P.
11 (filing 14) is denied.
-2-

5.

A separate judgment will be entered.

Dated this 14th day of September, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

-3-