WORRELL et al v. HARSHE
OPINION. Signed by Judge Noel L. Hillman on 10/5/2017. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GEORGE WORRELL and LINDA
ALAN C. MILSTEIN
SHERMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY
EAST GATE CORPORATE CENTER
308 HARPER DRIVE
MOORESTOWN, NJ 08057
On behalf of Plaintiffs
AILEEN E. MCTIERNAN
LOCKE LORD LLP
44 WHIPPANY ROAD
MORRISTOWN, NJ 07960
On behalf of Defendant.
HILLMAN, District Judge
This opinion arises from Plaintiffs’ Motion to Withdraw the
Complaint with Prejudice pursuant to Federal Rule of Civil
The Court notes this case is unusual for
two reasons: First, Plaintiffs are seeking a voluntary dismissal
Second, Defendant opposes the motion.
reasons that follow, Plaintiffs’ Motion to Withdraw the
Complaint with Prejudice is granted.
The following facts come from Plaintiffs’ April 2016
Plaintiffs and Defendant are associated in several
entities providing mental health services in New Jersey.
Plaintiffs allege Defendant accessed Plaintiffs’ Yahoo e-mail
accounts without consent to gain a business advantage over
Plaintiffs alleged violations of 18 U.S.C. § 2511
of the Electronic Communications Protection Act and of 18 U.S.C.
§ 2701 of the Stored Communications Act.
brought claims for libel and slander. 1
In a June 28, 2017 Scheduling Order, the parties were
“directed to engage in electronic discovery related to the
claims and defenses in the case.”
On September 8, 2017,
Plaintiffs moved to withdraw their complaint with prejudice.
The motion is opposed by Defendant, who argues the motion is an
According to Plaintiffs’ motion, the parties engaged in a
lengthy mediation, which concluded with a signed Mediation
Agreement. Plaintiffs allege Defendant failed to abide by the
terms of the Mediation Agreement and filed a Motion to Enforce
the Mediation Agreement. The Court dismissed the motion for
lack of jurisdiction, deciding that the motion had to be brought
in state court. Plaintiffs thereafter filed a complaint in New
Jersey Superior Court to enforce the Mediation Agreement, which
was still pending at the time of Plaintiffs’ motion.
attempt to avoid Defendant’s discovery request for Plaintiffs to
produce a computer tower.
Federal Rule of Civil Procedure 41(a)(2) provides, in
pertinent part: “[A]n action may be dismissed at the plaintiff’s
request only by court order, on terms that the court considers
“A motion for voluntary dismissal under Rule 41(a)(2)
lies within the sound discretion of the district court.”
Regupol, Inc. v. RB Rubber Prods., 585 F. Supp. 2d 645, 652
(M.D. Pa. 2008).
“The purpose of the grant of discretion under
Rule 41(a)(2) . . . is primarily to prevent voluntary dismissals
which unfairly affect the other side, and to permit the
imposition of curative conditions.”
Id. (alteration in
original) (quoting Charles A. Wright & Arthur R. Miller, 9 Fed.
Prac. & Proc. Civ. 2d § 2364 n.19).
“Numerous courts, including courts within the Third
Circuit, have held that a court lacks the discretion to deny a
The rule further provides: “If a defendant has pleaded a
counterclaim before being served with the plaintiff’s motion to
dismiss, the action may be dismissed over the defendant’s
objection only if the counterclaim can remain pending for
independent adjudication.” Fed. R. Civ. P. 41(a)(2). There are
no counterclaims included in Defendant’s answer. Rather,
Defendant argues in the opposition brief that the discovery “is
critically important . . . to potential related counterclaims.”
motion under Fed. R. Civ. P. 41(a)(2) when the plaintiff
requests that the dismissal be made with prejudice.”
v. Warren Hills Reg’l Bd. of Educ., No. 01-3061, 2006 WL 208562,
at *3 (D.N.J. Jan. 26, 2006).
Indeed, the denial of such a
motion could constitute an abuse of discretion by the district
John Evans Sons, Inc. v. Majik-Ironers, Inc., 95 F.R.D.
186, 190-91 (E.D. Pa. 1982) (“A different situation may be
presented where the plaintiff moves to dismiss with prejudice.
A trial court may abuse its discretion in denying such a motion
where dismissal would terminate the entire action since courts
should not conduct useless trials.” (quoting 5 Moore’s Federal
Practice para. 41.05 at 41-74)).
Similarly, a judge of this
Court, in Sypniewski, found that “a motion for voluntary
dismissal with prejudice eliminates [a court’s] discretion to
deny such a motion” and could “constitute an abuse of
2006 WL 208562, at *4 3; accord Sheridan v. Fox, 531
F. Supp. 151, 155 (E.D. Pa. 1982) (“If dismissal with prejudice
would dispose entirely of a case, it may always be an abuse of
discretion to deny dismissal.”).
Accordingly, “[w]here the plaintiff has consented to
The court in Sypniewski found that, even if the plaintiffs
had moved for dismissal without prejudice, the court would have
granted the motion, as the court found “Plaintiffs’ reasoning
for dismissal is sound.” 2006 WL 208562, at *4. Plaintiffs in
this case have not advanced an explanation that the Court could
discern for seeking dismissal.
dismissal with prejudice and the defendant will not face a
second lawsuit on plaintiff’s claim, the Court should grant the
motion for dismissal so long as it is not unfair to the
defendant to do so.”
Gilbreth Int’l Corp. v. Lionel Leisure,
Inc., 587 F. Supp. 605, 614 (E.D. Pa. 1983).
Defendant’s claim of prejudice is that Defendant will be
unable to obtain the discovery ordered.
Defendant cites the
following cases for the proposition that “[a] plaintiff cannot
use voluntary dismissal to prevent adverse discovery rulings”:
Alliance for Global Justice v. District of Columbia, No. 01-811,
2005 WL 469593 (D.D.C. Feb. 7, 2005); In re Vitamins Antitrust
Litigation, 198 F.R.D. 296 (D.D.C. 2000); and In re Wellbutrin
XL Antitrust Litigation, 268 F.R.D. 539 (E.D. Pa. 2010).
In Alliance for Global Justice, there was a discovery
dispute between the parties, in which the plaintiffs “argued
that the plaintiffs who had voluntarily dismissed themselves
from the case had no obligation to provide further discovery
2005 WL 469593, at *1.
The court noted that the
voluntary dismissal of various plaintiffs did “not end the
case,” and the defendants were “still in the process of
defending the federal court action that was filed against them.”
Id. at *3.
The court determined that “permitting plaintiffs to
avoid their discovery obligations would cause undue prejudice to
The Report and Recommendation from the
Magistrate Judge recommended a condition be imposed on the
voluntary dismissal that the dismissed plaintiffs respond to all
Id. at *4.
Alliance for Global Justice is factually distinguishable
from this case, as a voluntary dismissal with prejudice will
completely end this case – there would be no ongoing federal
action as there was in Alliance for Global Justice.
discovery the Alliance for Global Justice defendants sought had
continuing relevance; the discovery requested here does not.
In re Vitamins Antitrust Litigation involved similar
The defendants sought an order compelling
various plaintiffs in a class to respond to document requests.
198 F.R.D. at 303.
Before the court ruled, certain class
plaintiffs moved for voluntary dismissal.
The court stated
“it seem[ed] fairly obvious that these plaintiffs wish[ed] to
dismiss their actions merely to avoid having to give defendants
Id. at 304.
The court found that “legal
prejudice would result if dismissal of certain plaintiffs would
render the defendants unable to conduct sufficient discovery to
adequately defend themselves against the charges in this case.”
Id. at 305.
Accordingly, the court decided, “for [the]
protection of defendants,” that the production of the documents
was “a prerequisite to a voluntary dismissal without prejudice.”
In re Wellbutrin XL Antitrust Litigation also concerned a
class action, in which the class representatives sought
voluntary dismissal without prejudice and, as a condition of
dismissal, to be relieved of the duty to comply with a discovery
268 F.R.D. at 540-41.
The court found “[t]he discovery
at issue comprise[d] a narrow group of relevant documents that
go to the heart of the defendants’ anticipated defense.”
Deciding that “[t]he avoidance of an adverse discovery
ruling . . . is not a compelling grounds for dismissal without
prejudice,” the court conditioned the voluntary dismissal on the
production of the ordered discovery.
All three of these cases dealt with voluntary dismissals of
plaintiffs where the litigation would be ongoing after the
dismissal, as other plaintiffs remained in the action.
three cases also concerned voluntary dismissals without
prejudice, unlike Plaintiffs’ request for a voluntary dismissal
Accordingly, the Court does not find any of the
three cases cited dispositive.
Nor do they convince the Court
that Defendant’s desire to complete discovery is such a
compelling reason that the Court should deny the motion, where
granting Plaintiffs’ motion would terminate the case and, with
it, any need for discovery.
In considering a voluntary dismissal without prejudice
under Rule 41(a)(2), “a court must examine the prejudice to the
defendant, both in terms of legal prejudice and litigation
Dodge-Regupol, Inc., 585 F. Supp. at 652.
Relevant factors in this analysis include (1) the
litigation; (2) the effort and expense incurred by the
defendant in preparing for trial; (3) the extent to which
the current suit has progressed; (4) the plaintiff’s
diligence in bringing the motion to dismiss and
explanation therefore; and (5) the pendency of a
dispositive motion by the non-moving party.
The Court notes that even under this standard, Defendant
does not present a compelling case for the Court to deny the
As to the first prong, there will be no “second
litigation,” as dismissal would be with prejudice.
As to the
second prong, Defendant makes no argument regarding expenses
incurred, and the parties have only just begun discovery.
trial date has been set.
As to the third prong, the complaint
was filed in April 2016.
While the docket has been busy, the
case has not progressed into advanced stages of litigation.
to the fifth prong, there are no pending motions by Defendant.
The Court notes, relevant to the fourth prong, that Plaintiffs
have not provided the Court with an explanation for why they
Nevertheless, weighing these factors on whole
does not convince the Court that the voluntary dismissal should
Accordingly, the Court grants Plaintiffs’ motion to
withdraw the complaint and dismisses the action with prejudice
pursuant to Federal Rule of Civil Procedure 41(a)(2).
An appropriate Order will be entered. 4
Date: October 5, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
While a formal motion was not filed, the Court will grant
Defendant’s request to seal Exhibit 1 of Plaintiffs’ Motion,
consistent with our October 19, 2016 and May 4, 2017 Orders.
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