Welles v. Aamodt

Filing 68

ORDER denying as moot 43 Motion to Quash, 45 Motion for Summary Judgment, 47 Motion for Partial Summary Judgment, 49 Motion for Partial Summary Judgment, 51 Motion for Partial Summary Judgment, 55 Motion for Protective Order, 57 Motion to Enforce Subpoena, and granting 63 for Leave to Dismiss without Prejudice Pursuant to Rule 41(b). Signed by US District Judge Terrence W. Boyle on 7/28/2017. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-613-BO

HARRIS B. WELLES,
Plaintiff,
v.
NORMAN AAMODT,
Defendant.

)
)
)
)
)
)
)
)
)

ORDER

This cause comes before the Court on plaintiffs motion to quash, motion for protective
order, motion to enforce subpoena, and motion for leave to dismiss without prejudice pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure. Also before the Court are defendant's
motions for partial summary judgment and motion for summary judgment. The appropriate
responses and replies have been filed and the motions are ripe for ruling. For the reasons that
follow, this action is dismissed without preju~ice.
BACKGROUND
Plaintiff filed this action in Wake County Superior Court on October 21, 2015, alleging
claims under North Carolina common law for alienation of affection and criminal conversation
based on defendant's affair with plaintiff's then-wife. Defendant removed the action to this
Court on the basis of its diversity jurisdiction on November 20, 2015. 28 U.S.C. §§ 1441; 1332.
This Court denied plaintiffs motion to remand by order entered April 21, 2016. A motion to
dismiss by defendant was also denied and the case proceeded through discovery. The instant
motions followed.

In his motion to dismiss, plaintiff seeks an order dismissing his claims without prejudice.
Plaintiff cites excessive economic and personal burdens on continuing this action, as well as
what he believed to be an agreement in principal between the parties which would have resulted
in a stipulation of dismissal with prejudice being filed. Plaintiff now seeks an order of dismissal
with the following conditions to protect defendant against prejudice:
A. That plaintiff would not refile his claims against defendant unless defendant hereafter
commences litigation asserting claims against plaintiff based on alleged acts, omissions, or
circumstances prior to the date of the motion;
B. That any and all discovery in this action can be used in any subsequent litigation as if

it had been taken in this litigation;
C. That if plaintiffs present claims are reasserted in subsequent litigation (which would
only be done if defendant initiates litigation), the taxable costs in this action will be considered
taxable costs in such renewed litigatioIJ..
DISCUSSION
Although plaintiff moved initially under Rule 41 (b), it appears that plaintiff seeks
dismissal under Rule 41(a)(2) of the Federal Rules of Civil Procedure. This Rule provides that a
plaintiff may voluntarily dismiss an action by court order, on terms that the court considers
proper.

Dismissal under this provision operates as a dismissal without prejudice.

A court

considers factors such as the opposing party's effort and expense, whether there was excessive
delay and lack of diligence by the plaintiff, the stage of the litigation, and the sufficiency of the
explanation for the need of a dismissal when deciding whether to grant a motion to voluntarily
dismiss an action. Miller v. Terramite Corp., 114 Fed. App'x 536, 539 (4th Cir. 2004); see also

Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987) (court must focus primarily on

2

defendant's interests in consideration of motion under Rule 41(a)(2)). The decision to grant such
a motion lies within the court's discretion. Davis, 819 F.2d at 1273.
The Court finds that dismissal of this action without prejudice is appropriate in this case.
Plaintiff has provided sufficient explanation in his motion as to the bases for his request to
dismiss this action, citing both financial and personal hardships. Although the case is not in its ,
earliest stages, no trial date has been set nor has any jury been impaneled, and the fact that
summary judgment motions have been filed is not

~vidence

of sufficient prejudice to deny a

motion for voluntary dismissal. Andes v. Versant Corp., 788 F.2d 1033, 1037 n.4 (4th Cir.
1986). While defendant may have expended effort and expense, any prejudice to defendant in
having to defend against this action to date does not amount to plain legal prejudice sufficient to
defeat plaintiffs request to dismiss this action. See Eaddy v. Little, 234 F. Supp. 377, 379
(E.D.S.C. 1964).

Finally, there is no evidence of excessive delay or lack of diligence by

plaintiff. The Court further finds that the conditions on dismissal proposed in plaintiffs motion
are unnecessary to protect the interests of defendant or plaintiff and therefore declines to adopt
them here.
CONCLUSION
Accordingly, for the foregoing reasons, plaintiffs motion to dismiss this action without
prejudice [DE 63] is GRANTED. The remaining pending motions [DE 43, 45, 47, 49, 51, 55, &
57] are DENIED AS MOOT. The clerk is DIRECTED to close the file.

3

SO ORDERED, this

di:"day of..::f , 2017.
~

~A~
RRENCEW:B0YLE

UNITED STATES DISTRICJUDGE

4