Johnson et al v. Jos. A. Bank Clothiers, Inc.

Filing 70

OPINION AND ORDER granting in part and denying in part 66 Motion to Dismiss. The class claims under the OCSPA and the breach of contract claims are DISMISSED with prejudice; the claim for statutory injunctive relief under the OCSPA and the individual claims for monetary damages under the OCSPA are DISMISSED without prejudice. Signed by Magistrate Judge Norah McCann King on 1/6/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MATTHEW B. JOHNSON, et al.,
Plaintiffs,
Case No. 2:13-cv-00756
Magistrate Judge King

v.

JOS. A. BANK CLOTHIES, INC.,
Defendant.

OPINION AND ORDER
Plaintiffs sought declaratory, injunctive and monetary relief on
behalf of themselves and a plaintiff class, asserting claims of breach
of contract and violation of the Ohio Consumer Sales Practices Act
(“OCSPA”), O.R.C. § 1345.01 et seq., and rules promulgated thereunder.
Amended Complaint, ECF No. 32. The Court dismissed the class
allegations and breach of contract claims, Opinion and Order, ECF No.
40, as well as the claim for statutory injunctive relief under the
OCSPA, Opinion and Order, ECF No. 60.

In dismissing the claim for

statutory injunctive relief under the OCSPA, the Court reasoned that
plaintiffs lacked Article III standing to pursue this state law claim
in a federal court. Id. Only the individual plaintiffs’ claims for
monetary damages under O.R.C. § 1345.09(B) remain. With the consent of
the parties, see 28 U.S.C. § 636(c), this matter is now before the
Court on plaintiffs’ Motion for Dismissal without Prejudice, ECF No.
66. For the following reasons, plaintiffs’ Motion for Dismissal
without Prejudice is GRANTED in part and DENIED in part.

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DISCUSSION
Plaintiff’s original motion sought leave to voluntarily dismiss
the action, and presumably all the claims asserted in the action,
without prejudice pursuant to Federal Rule of Civil Procedure
41(a)(2). Motion to Dismiss without Prejudice. Defendant opposed that
request, arguing that the Court should dismiss the class claims,
breach of contract claims, and claims for equitable injunctive relief
with prejudice or, alternately, ”enter an order requiring Plaintiffs
to pay the attorneys’ fee and costs incurred by [defendant] related to
the dismissed claims.” Opposition to Plaintiffs Motion for Dismissal
without Prejudice and Separate Request for Conditions to the Same, ECF
No. 67, PAGEID# 1220-21. In reply, plaintiffs agree to the dismissal,
with prejudice, of the previously dismissed class claims under the
OCSPA and breach of contract claims, but insist that the dismissal of
the claim for statutory injunctive relief under the OCSPA and the
individual claims for monetary damages under the OCSPA should be
without prejudice. Plaintiffs’ Reply Brief to Defendant’s Brief in
Opposition to Plaintiffs’ Motion to Dismiss without Prejudice, ECF No.
68, PAGEID# 1235 (“Plaintiffs’ Reply”).
It therefore appears that the parties agree that the class claims
under the OCSPA and the breach of contract claims should be dismissed
with prejudice and that plaintiffs’ individual claims for monetary
damages under the OCSPA should be dismissed without prejudice. The
parties apparently disagree only as to the terms upon which
plaintiffs’ claim for injunctive relief should be dismissed.
The parties’ disagreement in this regard stems from their

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differing views on the nature of the claim for injunctive relief. The
claim for injunctive relief asserted in the Amended Complaint was
based, not on equitable principles, but on the OCSPA. See Opinion and
Order, ECF No. 51, PAGEID# 1044-45. As plaintiffs properly note,
Plaintiffs’ Reply, PAGEID# 1235, the Court dismissed this claim on the
basis of lack of constitutional standing, not because plaintiffs had
failed to state a claim for relief under state law. Opinion and Order,
ECF No. 60, PAGEID# 1199-1203. In seeking leave to voluntarily dismiss
this claim without prejudice, plaintiffs represent that “they have no
intention of refiling this case in federal court. . . .” Plaintiffs’
Reply, PAGEID# 1235. However, plaintiffs wish to preserve the
opportunity to pursue this state law claim in an appropriate state
court. Motion for Dismissal without Prejudice, PAGEID# 1215-16.
Rule 41(a)(2) of the Federal Rules of Civil Procedure provides
that, under circumstances such as those presented 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). The
decision to dismiss a case pursuant to Rule 41(a)(2) falls “within the
sound discretion of the district court,” and the “primary purpose of
the rule. . .is to protect the nonmovant from unfair treatment.”
Grover v. Eli Lilly and Co., 33 F.3d 716, 718 (6th Cir. 1994). “In the
context of a Rule 41(a)(2) dismissal without prejudice, an abuse of
discretion is generally found ‘only where the defendant would suffer
plain legal prejudice as a result of a dismissal without prejudice, as
opposed to facing the mere prospect of a second lawsuit.’” Rosenthal
v. Bridgestone/Firestone, Inc., 217 Fed. App’x 498, 500 (6th Cir.

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2007) (citing Grover, 33 F.3d at 718).
In determining whether a defendant will suffer plain legal
prejudice as a result of a dismissal without prejudice, courts in the
Sixth Circuit should consider the following four factors: (1)
“defendant’s effort and expense of preparation for trial”; (2)
“excessive delay and lack of diligence on the part of the plaintiff in
prosecuting the action”; (3) “insufficient explanation for the need to
take a dismissal”; and (4) “whether a motion for summary judgment has
been filed by the defendant.” Grover, 33 F.3d at 718.
In this case, defendant has not established that it would suffer
plain legal prejudice should plaintiffs’ claim for statutory
injunctive relief be dismissed without prejudice. Although defendant
has undoubtedly expended both time and resources in its defense,
expense alone and the mere possibility of a second lawsuit in state
court do not justify dismissal with prejudice. See Grover, 33 F.3d at
718. In this regard, it is significant that, should plaintiffs pursue
this claim in an Ohio court, that court may “order . . . the payment
of costs of the claim previously dismissed as it may deem proper. . .
.” Ohio R. Civ. P. 41(D). Moreover, plaintiffs have not caused such
excessive delay as to justify the dismissal of the claim for
injunctive relief with prejudice. After the Court’s dismissal of the
claim for statutory injunctive relief, see Opinion and Order, ECF No.
60, the parties participated in a status conference and engaged in
settlement discussions.

See Order, ECF No. 62; Status Report, ECF No.

64. Furthermore, plaintiffs have sufficiently explained the request to
dismiss this claim without prejudice. See Motion for Dismissal without

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Prejudice, PAGEID# 1216 (“The Court’s ruling on Article III standing
effectively hamstrung Plaintiffs’ case in federal court.”). Finally,
no party has filed a motion for summary judgment. See Grover, 33 F.3d
at 718.
Under all these circumstances, this Court concludes that
plaintiffs’ claim for statutory injunctive relief should be dismissed
without prejudice.
WHEREUPON the Motion for Dismissal without Prejudice, ECF No. 66,
is GRANTED in part and DENIED in part. The class claims under the
OCSPA and the breach of contract claims are DISMISSED with prejudice;
the claim for statutory injunctive relief under the OCSPA and the
individual claims for monetary damages under the OCSPA are DISMISSED
without prejudice.

s/ Norah McCann King___
Norah McCann King
United States Magistrate Judge

January 6, 2016

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