McDowell v. Management & Training Corp. et al

Filing 41

Order: Plaintiff's motion for leave to dismiss this case under Fed. R. Civ. P. 41(a) without prejudice be, and the same hereby is granted.(Related Doc # 38 ). Judge James G. Carr on 1/15/19.(C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Joseph A. McDowell,

Case No. 3:16CV3086
Plaintiff

v.

ORDER

Management & Training Corporation, et al.,
Defendants
This is one of several suits that plaintiff’s counsel has filed on behalf of inmates (or
former inmates) at a prison in Marion, Ohio, that defendant Management & Training
Corporation (MTC) operates for the Ohio Department of Rehabilitation and Corrections.
On plaintiffs’ counsel’s motions in the other cases, I have dismissed the federal claims
with prejudice and the state law claims without prejudice. Counsel has, in turn, filed some of
those state-law claims in the Common Pleas Court of Marion County, Ohio.
Pending in this case is counsel’ s motion for leave to dismiss this suit under Fed. R. Civ.
P. 41(a) without prejudice. (Doc. 38), which MTC counsel opposes, but only on the ground that
the dismissal should be with prejudice. (Doc. 39).
In support of the defendant’s opposition to a dismissal without prejudice, counsel points
to the rather extreme tardiness of plaintiff’s expert’s report. In reply to this issue, plaintiff’s
counsel states that, before she can obtain and provide such report, she needs to locate and depose
a former Corrections Officer now believed to be living somewhere in Arizona. (Doc. 40,
PageID 328).

That explanation suffices to persuade me that granting dismissal without prejudice is
appropriate. It seems quite likely that if efforts to locate that witness are unavailing, refilling,
whether in this court or in Marion County, is unlikely.
All counsel have worked with commendable diligence and professionalism in
representing their respective parties, and the challenges each has faced, now faces, and probably
will face until the overall litigation comes to an end are, for each, daunting. As they are for the
parties. I do not fault MTC counsel for opposing dismissal without prejudice, and thereby
protecting his client’s best interests. In the end, this litigation may return, but at this point, given
the practicalities confronting plaintiff’s counsel, that appears somewhat doubtful. If it does,
because plaintiff’s counsel has located the now MIA witness, I assume that she will prosecute the
matter diligently, and meet whatever deadlines I or the state court judge may set.
It is, accordingly, hereby
ORDERED THAT plaintiff’s motion for leave to dismiss this case under Fed. R. Civ. P.
41(a) without prejudice be, and the same hereby is granted.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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