Pingle v. Richmond Heights Local School District Board of Education et al
Opinion and Order: Plaintiff's motion to dismiss Count I without prejudice under Rule 41(a)(2) is denied. (Doc. No. 41 .) Due to the time expended by the parties briefing this issue, the Court shall permit plaintiff to submit his pre-hea ring brief on or before April 11, 2014. Defendants may submit their briefing on or before May 9, 2014, and plaintiff may submit his reply brief on or before May 23, 2014. The oral argument set for June 10, 2014 is rescheduled until June 20, 2014 at 10:00 AM. Judge Sara Lioi on 3/28/2014. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
RICHMOND HEIGHTS LOCAL SCHOOL
DISTRICT BOARD OF EDUCATION, et al.,
CASE NO. 1:12-CV-2892
JUDGE SARA LIOI
OPINION AND ORDER
This matter is before the Court on plaintiff’s motion to dismiss Count I of his
complaint without prejudice under Rule 41(a)(2). (Doc. No. 41.) Defendants oppose the motion.
(Doc. Nos. 43, 44.) For the reasons set forth below, plaintiff’s motion is DENIED.
I. Procedural Background
The road to the merits of this case has been a long and winding road, and each
party seeks to blame the other for the twists and turns along the way. While plaintiff claims that
the procedural detours are attributable to defendants’ removal, defendants decry plaintiff’s
joining disparate claims together in a single complaint. Whatever their cause, procedural
issues—which the Court shall now summarize—have been a substantial roadblock. Plaintiff
initially filed a complaint in the Cuyahoga County Common Pleas Court, asserting six claims
under state and federal law, one of which was an administrative appeal of termination under
Ohio Rev. Code § 3319.16. (See Doc. No. 1-2.) Defendants timely removed the case to this
Court on the basis of plaintiff’s Title VII claims. (See Doc. No. 1.) And there the troubles began.
First, defendants filed motions for partial remand, seeking to remand Count I to
the state court on the basis of abstention. (Doc. Nos. 16, 17.) Plaintiff opposed the motion. (Doc.
No. 21.) Defendants later abandoned the motion for partial remand. (Doc. No. 23.) In reviewing
the odd juxtaposition of a specialized state administrative appeal with a series of federal and state
employment discrimination claims, the Court ordered a second round of briefing on federal
abstention, whereupon it concluded that abstention doctrines, limited as they are, did not apply to
this case. (Non-Document Order, Sept. 19, 2013; Doc. Nos. 30, 31.) Accordingly, the Court
retained jurisdiction over all claims asserted by plaintiff, including the § 3319.16 administrative
appeal. (Doc. No. 32.)
Thus, nearly a year after its filing, the litigation was still plagued by the unhappy
marriage at its center: an administrative appeal, with limited evidence, pleadings, and without a
jury, wedded to Title VII claims requiring full discovery, motion practice, and a jury trial. The
Court ordered, and the parties filed, additional briefing to address how this case should proceed
with this awkward coupling of claims. (Doc. Nos. 32, 33, 34, 36, 37.) The Court ruled that the
administrative appeal must be heard first (Doc. No. 39), and plaintiff then moved to dismiss that
claim without prejudice (Doc. No. 41). Defendants opposed, requesting dismissal with prejudice,
or dismissal without prejudice, provided that plaintiff pay defendants’ attorney fees for the
procedural briefing ordered by the Court (Doc. Nos. 31, 33, 37), that the Court order the
administrative hearing testimony and exhibits admitted into evidence, and that the Court limit
discovery to issues not already covered in the administrative hearing testimony. (Doc. No. 43 at
1548-49.) Plaintiff opposes each of these conditions. (Doc. No. 45.)
II. Relevant Authority
Rule 41(a)(2) of the Federal Rules of Civil Procedure provides:
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 considers proper. 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. Unless
the order states otherwise, a dismissal under this paragraph (2) is without
Dismissal under Rule 41(a)(2) is within the sound discretion of the trial court. Grover by Grover
v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994) (citation omitted). The trial court, which must
protect the nonmovant from unfair treatment, may deny a dismissal without prejudice if the
defendant will suffer plain legal prejudice. Cogent Solutions Grp., LLC v. Brown, No. 2:12-CV665, 2013 WL 6116052, at *5 (S.D. Ohio Nov. 20, 2013) (citation omitted). In analyzing plain
legal prejudice, courts consider “the defendant’s effort and expense of preparation for trial,
excessive delay and lack of diligence on the part of plaintiff in prosecuting the action,
insufficient explanation for the need to take a dismissal, and whether a motion for summary
judgment has been filed by the defendant.” Bridgeport Music, Inc. v. Universal-MCA Music
Publ’g, Inc., 583 F.3d 948, 953 (6th Cir. 2009) (citation omitted). The trial court may condition
dismissal without prejudice on any terms it deems proper.
Under the first factor, defendants have spent much effort and expense wading
through the procedural issues that have arisen from plaintiff’s complaint. Even though no
controlling authority, including the Ohio Supreme Court, expressly forbids joining the § 3319.16
appeal to the discrimination claims, defendants have spent considerable time and expense
dealing with the joinder’s effects all the same. The Court has conducted extensive research on §
3319.16 and cannot find a single instance in which a federal court decided a § 3319.16 appeal,
much less addressed state or federal discrimination claims in conjunction with a § 3319.16
appeal. Moreover, as plaintiff acknowledges, there is no clear precedent under Ohio law for how
to proceed in this type of “hybrid” case,1 thus forcing the Court and the parties to expend
considerable time deciding how to proceed.2 (Doc. No. 45 at 1567.) The time spent by
defendants on this issue pales in comparison, however, to the time spent on the § 3319.16 appeal
itself, which included five days of hearings with hundreds of pages of testimony and other
evidence, as well as post-hearing briefing.
More importantly, plaintiff has not adequately explained his need to take a
dismissal of Count I without prejudice. In essence, plaintiff seeks to abandon his administrative
appeal halfway through the proceedings. Section 3319.16 provides a detailed procedure for
terminating teacher contracts, with four levels of review, all within the state system: (1) the
referee-conducted hearing; (2) the school board review of and vote on the referee’s
recommendation; (3) appeal to the court of common pleas in the county in which the school is
located; and (4) appellate review. Currently embroiled in step three, plaintiff seeks to put the
In relevant part, the statute provides:
The appeal shall be an original action in the [state common pleas] court and shall be commenced
by the filing of a complaint against the board, in which complaint the facts shall be alleged upon
which the teacher relies for a reversal or modification of such order of termination of contract.
Upon final hearing, the [state common pleas] court shall grant or deny the relief prayed for in the
complaint as may be proper in accordance with the evidence adduced in the hearing.
Ohio Rev. Code § 3319.16. The plain language of the statute limits § 3319.16 to the relief prayed for in the
complaint, which is in turn limited to reversal or modification of the school board’s order of contract termination.
The plain language of the statue cuts against joinder of other claims.
Plaintiff’s argument that he “could not have foreseen” the Court’s decision to hear the § 3319.16 appeal first is
disingenuous. Not only has defendant consistently argued that the § 3319.16 appeal must be set apart from plaintiff’s
other claims and proceed first (see, e.g., Doc. No. 16), the Court specifically ordered briefing whether it “must
decide plaintiff’s claim under Ohio Rev. Code § 3319.16 before hearing plaintiff’s other federal and state claims[.]”
(Doc. No. 32 at 1434.)
appeal on hold, pursue more expansive remedies, and, perhaps—although he says he has no
present plans to do so—return to the administrative appeal to finish up steps three and four, at
some later and unknowable date. Plaintiff may either see the administrative appeal through to its
conclusion, as currently scheduled in this Court, or renounce it and pursue other remedies. This
appeal, which must be “advanced and heard without delay” once the administrative transcripts
have been filed, may not be dangled over defendants’ heads like a legal sword of Damocles.
Under the fourth factor, while defendants have not filed a motion for summary
judgment on Count I, § 3319.16 does not allow for the filing of such a motion. The Court
believes that the intent behind this factor is to protect defendants when the “lawsuit [has] been in
litigation for a considerable time before the motion to voluntarily dismiss without prejudice [is]
filed.” Grover, 33 F.3d at 718-19. As mentioned above, the § 3319.16 appeal has progressed
through two of its four levels of review. Analogized to a civil suit, this administrative appeal has
advanced far beyond summary judgment and into its first level of appellate review. Without
question, the appeal “[has] been in litigation for a considerable time[.]”
While the remaining factor is less helpful to defendants, it does not merit
dismissal of Count I without prejudice. Under the second factor, plaintiff has pursued his rights
diligently, pointing in favor of dismissal without prejudice.
Considering all the factors, the Court cannot permit plaintiff to pause his §
3319.16 appeal in mid-litigation, pursue an entirely different case, and then leave the possibility
of refiling. Rule 41(a)(2) gives the Court the power to order dismissal on terms it considers
proper. Due to the more advanced stage of the § 3319.16 appeal relative to plaintiff’s other
claims, the only terms the Court considers proper would be dismissal with prejudice.
For the reasons set forth above, plaintiff’s motion to dismiss Count I without
prejudice under Rule 41(a)(2) is DENIED. Due to the time expended by the parties briefing this
issue, the Court shall permit plaintiff to submit his pre-hearing brief on or before April 11, 2014.
Defendants may submit their briefing on or before May 9, 2014, and plaintiff may submit his
reply brief on or before May 23, 2014. The oral argument set for June 10, 2014 is rescheduled
until June 20, 2014 at 10:00 AM.
IT IS SO ORDERED.
Dated: March 28, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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