White v. Coin Laundry et al
AMENDED MEMORANDUM AND ORDER that Plaintiff's motion to dismiss, Filing No. 89, is granted with respect to dismissal, but denied with respect to dismissal without prejudice; Defendant's oral motion to dismiss with prejudice is granted; and This action is dismissed with prejudice. Ordered by Senior Judge Joseph F. Bataillon. (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COIN LAUNDRY and MAYNE PLACE,
MEMORANDUM AND ORDER
This matter is before the court on the plaintiff’s motion to dismiss without
prejudice, Filing No. 89, and on the defendant’s oral motion to dismiss with prejudice.
This is an action for violations of the Americans with Disabilities Act (ADA), 42
U.S.C. § 12182, et seq.
The matter was set for trial commencing at 10:00 a.m. on
Monday, September 18, 2017. The plaintiff did not submit trial materials as ordered in
the Order on Pretrial Conference, but rather moved to dismiss without prejudice late on
the Friday preceding the trial date.
On the morning of the trial, the defendant appeared with counsel, James McVay,
prepared for trial. The plaintiff did not appear. Defense counsel stated the defendant
had no objection to a dismissal, but orally moved for a dismissal with prejudice.
The plaintiff has an unfettered right to dismiss, without court approval, before the
opposing party files an answer or with a stipulation signed by all parties. Fed. R. Civ. P.
The court amends the Memorandum and Order sua sponte to correct the spelling of the last
name of defendant’s counsel.
41(a)(1)(i) & (ii).
Rule 41(a)(1) cases require no judicial approval or review as a
prerequisite to dismissal; in fact, the dismissal is effective upon filing, with no court
action required. Adams v. USAA Cas. Ins. Co., 863 F.3d 1069, 1080 (8th Cir. 2017).
The purpose of Rule 41(a)(1)(i) is to fix the point at which the resources of the court and
the defendant are so committed that dismissal without preclusive consequences can no
longer be had as of right. In re Piper Aircraft Distribution Sys. Antitrust Litig., 551 F.2d
213, 220 (8th Cir. 1977).
Rule 41(a)(2) dismissals, which apply once an answer or motion for summary
judgment has been served, are contested dismissals that require a district court's
approval and a court order. Adams v. USAA Cas. Ins. Co., 863 F.3d 1069, 1079 (8th
Cir. 2017); Fed. R. Civ. P. 41(a)(2) (“Except as provided in Rule 41(a)(1), an action may
be dismissed at the plaintiff's request only by court order, on terms that the court
“Rule 41(a)(2)'s purpose ‘is primarily to prevent voluntary
dismissals which unfairly affect the other side.” Id. (quoting Paulucci v. Duluth, 826 F.2d
780, 782 (8th Cir. 1987)). A “‘[v]oluntary dismissal under Rule 41(a)(2) should not be
granted if a party will be prejudiced by the dismissal.’” Id. (quoting Metro. Fed. Bank of
Iowa, F.S.B. v. W.R. Grace & Co., 999 F.2d 1257, 1262 (8th Cir. 1993)).
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
discretion of the court. Beavers v. Bretherick, 227 Fed. App’x 518, 520 (8th Cir. 2007)
(stating the decision to grant or deny a plaintiff's motion to dismiss a lawsuit voluntarily
is within the sound discretion of the district court); see generally Charles Allen Wright,
Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure. § 2364 (3d ed.
1998). The trial court may grant a Rule 41(a) dismissal without prejudice or may require
that the dismissal be with prejudice. See, e.g., Witzman v. Gross, 148 F.3d 988, 992
(8th Cir. 1998) (refusal to dismiss without prejudice not abuse of discretion when
defendant had expended considerable time and money defending suit, plaintiff had not
been diligent, plaintiff's claims were precluded by law, and defendant had moved for
summary judgment); Metro. Fed. Bank of Iowa, F.S.B. v. W.R. Grace & Co., 999 F.2d
1257, 1263 (8th Cir. 1993) (observing that if a defendant demonstrated a valid defense
to a plaintiff's claims, a district court would abuse its discretion by granting a plaintiff's
motion to voluntarily dismiss without prejudice).
In exercising its discretion in determining whether to grant a motion to voluntarily
dismiss without prejudice under Fed. R. Civ. P. 41(a)(2), a district court should consider
the following four factors: (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.
Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987); see also Adams, 863 F.3d
at 1080 (noting that in determining a contested motion for voluntary dismissal under
Rule 41(a)(2), a district 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
Alternatively, Federal Rule of Civil Procedure 41(b) empowers courts to dismiss a
plaintiff's lawsuit with prejudice for failure to prosecute or failure to comply with either
the Federal Rules or a court order:
If the plaintiff fails to prosecute or to comply with these rules or a court
order, a defendant may move to dismiss the action or any claim against it.
Unless the dismissal order states otherwise, a dismissal under this
subdivision (b) and any dismissal not under this rule—except one for lack
of jurisdiction, improper venue, or failure to join a party under Rule 19—
operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b). “This power enables the district courts to ensure the expeditious
handling of cases and to protect the rights of opposing parties to be free of prejudice
caused by a litigant's dilatory conduct.” Hutchins v. A.G. Edwards & Sons, Inc., 116
F.3d 1256, 1260 (8th Cir. 1997). Dismissal with prejudice is “only . . . available for
‘willful disobedience of a court order or where a litigant exhibits a pattern of intentional
delay.’” Siems v. City of Minneapolis, 560 F.3d 824, 826 (8th Cir. 2009) (quoting Hunt v.
City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000)).
Willful disobedience or
intentional delay does not require a finding “that the [plaintiff] acted in bad faith, but
requires ‘only that he acted intentionally as opposed to accidentally or involuntarily.’”
Hunt, 203 F.3d at 527 (quoting Rodgers v. Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir.
1998)). In considering this remedy, “[a] district court should weigh its need to advance
its burdened docket against the consequence of irrevocably extinguishing the litigant's
claim and consider whether a less severe sanction could remedy the effect of the
litigant's transgressions on the court and the resulting prejudice to the opposing party.”
Hutchins, 116 F.3d at 1260. Less severe sanctions, however, are not required if they
create futility by leaving a plaintiff “‘totally unable to prove his claims.’” Siems, 560 F.3d
at 827 (quoting Hunt, 203 F .3d at 528).
In the present case, the court finds the factor of the defendant’s effort and
expense in preparing for trial weigh in favor of a with prejudice dismissal. The plaintiff’s
motion to voluntarily dismiss was filed on the eve of trial, after the defendant had
prepared and submitted his trial materials in accordance with the order on pretrial
Evidence supports a conclusion that the plaintiff has been less than
diligent in prosecuting this action. The plaintiff has propounded no reason for seeking
dismissal of the action. Last, the plaintiff earlier moved for summary judgment,
necessitating a response from the defendant, and the motion was denied.
Further, the court finds that taken as a whole, the plaintiff's actions and inactions
amount to a persistent pattern of delay. There is no indication the lapses were
accidental or involuntary. This action has been pending since January 25, 2016. The
plaintiff failed to respond to the defendant’s earlier motion to dismiss on the ground of
standing. In the order on pretrial conference, the plaintiff was ordered to submit a trial
brief and proposed findings of fact and conclusions of law on or before September 14,
2017, but failed to do so. Finally, the plaintiff did not appear at the scheduled trial.
Under the circumstances, the court finds a dismissal without prejudice would not
be appropriate. In any event, the materials submitted to the court this far establish that
the alleged violation has been remedied and the action is moot. This court concludes in
its discretion that that the plaintiff’s action should be dismissed with prejudice under
Rule 41(a)(2) because the defendant has shown prejudice in that it has expended the
effort and expense of preparing for trial.
Alternatively, the court finds the defendant’s motion for a with prejudice dismissal
should be granted under Federal Rule of Civil Procedure 41(b) in light of the plaintiff's
failure to comply with this court's orders and for failure to prosecute her case.
IT IS HEREBY ORDERED that
Plaintiff’s motion to dismiss, Filing No. 89, is granted with respect to
dismissal, but denied with respect to dismissal without prejudice;
Defendant’s oral motion to dismiss with prejudice is granted; and
This action is dismissed with prejudice.
Dated this 19th day of September, 2017.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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