Pleus v. ARP FAMILY FARMS, an Arizona general partnership et al

Filing 69

ORDER. IT IS HEREBY ORDERED that 62 Plaintiff's Emergency Motion for Voluntary Dismissal is GRANTED. This case is dismissed against the remaining defendants without prejudice and without an award of fees or costs. The Clerk of Court is ordered to close the case. Signed by Judge Richard F. Boulware, II on 1/16/2018. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ALBERT H. PLEUS,

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Plaintiff,

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v.

Case No. 2:15-cv-02093-RFB-NJK
ORDER

ARP FAMILY FARMS et al.,

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Defendants.

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I.

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INTRODUCTION
Before the Court is Plaintiff’s Emergency Motion for Voluntary Dismissal (ECF No. 62)

without prejudice based upon Federal Rule of Civil Procedure 41(a). The Court grants the Motion

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and dismisses this case without prejudice and without ordering fees and costs.
II.

DISCUSSION

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The Plaintiff has moved for voluntary dismissal pursuant to Rule 41(a)(2) against the

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remaining Defendants in this action – ARP Family Farms; Ephesians 3:20 Farms; Proverbs 31

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Farms, LLC; Circle 191 Farms, LLC; San Tan Agriculture, LLC; and Nathan W. Arp (the

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“Remaining Defendants”). Rule 41(a)(2) permits a plaintiff to seek voluntary dismissal of an

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action without prejudice from the district court. Id. “The purpose of the rule is to permit a plaintiff

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to dismiss an action without prejudice so long as the defendant will not be prejudiced, . . . or

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unfairly affected by the dismissal.” Stevedoring Services of America v. Armilla Int'l B.V., 889

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F.2d 919, 921 (9th Cir. 1989).

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The Court finds it appropriate to dismiss this case without prejudice and without requiring

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the Plaintiff to pay fees and costs. The Court finds that Remaining Defendants will not suffer

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prejudice and they have not raised a significant issue of prejudice. There has been no discovery

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in this case beyond initial disclosures and the setting of a discovery schedule. The Remaining

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Defendants do not oppose dismissal. The Court therefore will dismiss this case without prejudice.

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The Remaining Defendants have requested that the Court ordered the payment of

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reasonable attorneys fees and costs as a condition precedent to the dismissal of this action. The

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Remaining Defendants assert that if the action is filed anew, they will have to pay additional

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attorneys fees and costs for the new action. The Court rejects the Remaining Defendants’ request.

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First, given the nature of this case, it is not clear to the Court that any new action by Plaintiff would

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be substantially different than the facts alleged in this case. The Court finds that the Remaining

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Defendants can and could continue to benefit from the legal counsel they received in this case

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regarding the causes of action alleged against them. Second, the litigation has not progressed in a

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significant or substantial manner, so the Court does not find that the Remaining Defendants had to

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pay for significant legal advice and related costs. While there had been an exchange of initial

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disclosures, discovery in this case had not actually commenced. Finally, the Court cannot

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adequately determine whether there is a likelihood or not that the Plaintiff could prevail on its

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claims against the Remaining Defendants.

Considering all of these factors, the Court does not

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find that the award of fees and costs would be appropriate as a condition precedent to the granting
of a voluntary dismissal without prejudice.

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III.

CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Emergency Motion for Voluntary Dismissal

(ECF No. 62) is GRANTED. This case is dismissed against the remaining defendants without

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prejudice and without an award of fees or costs. The Clerk of Court is ordered to close the case.

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DATED this 16th day of January, 2018.

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____________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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