Kennedy v. Springfield Township, Ohio et al

Filing 29

Memorandum Opinion and Order: Plaintiff's motion to voluntarily dismiss this action without prejudice is granted. (Doc. No. 26 .) The Clerk is instructed to close this case. Judge Sara Lioi on 3/27/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

FREDERICK KENNEDY,

PLAINTIFF,
vs.

SPRINGFIELD TWP., OHIO, et al.,

DEFENDANTS.

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CASE NO. 5:16-cv-1960

JUDGE SARA LIOI

MEMORANDUM OPINION AND
ORDER

This matter comes before the Court on the motion of plaintiff Fredrick Kennedy
(“plaintiff” or “Kennedy”) to voluntarily dismiss the action without prejudice pursuant to Fed. R.
Civ. P. 41(a)(2). (Doc. No. 26 [“Mot.”].) Defendants, Summit County, Ohio and Jimmy Fields,
Jr. (collectively “Summit County defendants”), have responded (Doc. No. 27 [“Resp.”]), and
plaintiff has filed a reply. (Doc. No. 28 [“Reply”].) For all of the foregoing reasons, the motion
to voluntarily dismiss is granted.
I.

BACKGROUND
On August 4, 2016, plaintiff filed the present action alleging that various public entities

and their employees violated his constitutional rights during the course of a traffic incident that
resulted in plaintiff’s arrest. (Doc. No. 1 (Complaint).) On October 25, 2016, after defendants
had filed their answers to the complaint, the Court conducted a telephonic case management
conference at which time the Court was advised that the parties were interested in engaging in a
mediation session after some initial discovery was conducted. By agreement of the parties, the

Court scheduled this matter for mediation before retired Magistrate Judge David Perelman to
take place on or before March 31, 2017. (Doc. No. 23; Minutes, dated Oct. 25, 2016.)
On January 24, 2017, the Court conducted a telephonic status conference during which
plaintiff’s counsel advised that there had been some discovery delays due, in part to personal
issues involving plaintiff. All counsel agreed that, as a result of the incomplete status of
discovery, there was reason to believe that the scheduled mediation session would not prove
fruitful. Plaintiff’s counsel further indicated that plaintiff may seek leave to dismiss the action
without prejudice. The Court instructed counsel to meet and confer to determine whether all
parties would stipulate to a dismissal of this action without prejudice. (Minutes, dated Jan. 24,
2017.) On January 27, 2017, counsel advised the Court that all parties did not agree to a
stipulated dismissal without prejudice. (Minutes, dated Jan. 27, 2017.) The present motion to
voluntarily dismiss this action followed.
II.

LAW AND DISCUSSION
Plaintiff now moves the Court for an order voluntarily dismissing this action without

prejudice “for the reasons enumerated to the Court and opposing counsel during the January 24,
2017 status conference.” (Mot. at 156.) The Court presumes that plaintiff refers to his counsel’s
prior reference to the “personal issues” plaintiff was addressing and because of which discovery
has been delayed. Summit County defendants do not oppose the motion, but, rather, merely
responded in order to “plainly preserve rights to costs should the motion be granted.” (Resp. at
159.) Specifically, defendants represent that, by agreeing to this dismissal, they “do not forfeit
rights under Fed. R. Civ. P. 41(d) to ask for costs should the Court grant” the motion and “this
matter is later re-filed.” (Id. at 159-60.) Defendants further request that plaintiff “be ordered to be
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responsible for any court fees outstanding in this present action.” (Id. at 160.)
Rule 41(a)(2) provides a plaintiff with a means by which to voluntarily dismiss his own
case. Notwithstanding a few caveats not at issue here, “an action may be dismissed at the
plaintiff’s request only by court order, on terms that the court considers proper.” Fed R. Civ. P.
41(a)(2). “Unless the [court’s] order states otherwise, a dismissal under [Rule 41(a)(2)] is
without prejudice.” Id. The requirement of court approval exists primarily to protect the nonmovant from unfair treatment. Bridgeport Music, Inc. v. Universal-MCA Music Pub., Inc., 583
F.3d 948, 953 (6th Cir. 2009) (citing Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir.
1994)). Thus, while the decision to dismiss under this rule is discretionary, a district court abuses
that discretion when a dismissal without prejudice would cause the defendant to suffer “plain
legal prejudice.” Grover, 33 F.3d at 718 (citations omitted).
“The mere prospect of having to face a second lawsuit” is not the type of prejudice that
Rule 41(a)(2) contemplates. Jones v. W. Reserve Transit Auth., 455 F. App’x 640, 643 (6th Cir.
2012) (citation omitted). Instead, the Court considers several factors in deciding whether a
defendant will suffer “plain legal prejudice” from a dismissal without prejudice: (1) the
defendant’s effort and expense in preparing for trial; (2) excessive delay or lack of diligence by
the plaintiff in prosecuting the action; (3) insufficiencies in the plaintiffs’ explanation of the need
for a dismissal; and (4) whether a motion for summary judgment is pending. Bridgeport Music,
583 F.3d at 953 (citing Grover, 33 F.3d at 718) (quotation marks omitted). These factors are not
an “exclusive or mandatory list,” and district courts need not analyze each factor or limit its
consideration to those factors alone.” Rosenthal v. Bridgestone/Firestone, Inc., 217 F. App’x
498, 502 (6th Cir. 2007) (citation and further quotation marks omitted).
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Given the fact that no defendant opposes the dismissal without prejudice and, after
consideration of the relevant factors set forth above, the Court finds that dismissal of this action
without prejudice and with defendants retaining the right to seek costs under Rule 41(d) should
the action be re-filed is proper. In reaching this conclusion, the Court notes that the case is in its
infancy and no party has begun to incur costs preparing for trial or preparing summary judgment
motions. Moreover, while plaintiff has not elaborated fully on the personal issues that have
hindered his prosecution of this case, the Court finds that plaintiff’s counsel has sufficiently
explained his client’s need for dismissal at this time. Further, because there are no “court fees
outstanding in this present action,” Summit County defendants’ request for an order requiring
plaintiff to pay such fees is denied as moot.
III.

CONCLUSION
For all of the foregoing reasons, plaintiff’s motion to voluntarily dismiss this action

without prejudice is granted. The Clerk is instructed to close this case.
IT IS SO ORDERED.

Dated: March 27, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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