Bryant et al v. Sagamore Insurance Company

Filing 116

ORDER & OPINION by Judge Ronald A. White denying motion for a dismissal without prejudice ( 101 Motion to Dismiss) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
KELLY BRYANT and
HOLLIE BRYANT,
Plaintiffs,
v.

Case No. CIV-13-240-RAW

SAGAMORE INSURANCE COMPANY,
Defendant.
ORDER & OPINION
Plaintiffs Kelly Bryant and Hollie Bryant (hereinafter referenced individually as “Kelly”
and “Hollie”) brought this action against Defendant Sagamore Insurance Company (hereinafter
“Sagamore”) on May 31, 2013 seeking damages for breach of contract and bad faith. Nearly a
year later, after this case has been zealously litigated and is less than a month from trial, before
the court is Kelly’s motion for an order dismissing his claims against Defendant without
prejudice [Docket No. 101].1 Sagamore opposes the motion.
The court grants such a dismissal when there is no “legal prejudice to the defendant.”
Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). In determining whether a defendant
will suffer legal prejudice, the court looks to all relevant factors, including the following nonexhaustive list of factors provided by the Tenth Circuit: “the opposing party’s effort and expense
in preparing for trial; excessive delay and lack of diligence on the part of the movant; insufficient
explanation of the need for a dismissal; and the present stage of litigation.” Id. The court

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Kelly informs the court that he approached Sagamore with two options: (i) a dismissal of
his claims against Sagamore with prejudice provided that each party is responsible for his/its own
costs and attorneys’ fees, or (ii) a dismissal without prejudice provided that should Kelly refile
against Sagamore, he be required to pay Sagamore’s costs and fees. Sagamore declined the offer.

endeavors “to insure substantial justice is accorded to both parties.” Id. The court, therefore,
considers “the equities not only facing the defendant, but also those facing the plaintiff.” Id. In
determining whether to grant the dismissal, the court does not consider its own “time or effort
spent on the case.” Id.
Kelly states that he seeks the dismissal without prejudice of his claims against Sagamore
because after the court’s rulings on the motions in limine, he believes the costs of further
litigating his claims against Sagamore will exceed his compensatory damages. He further states
that he believes his dismissal will streamline the issues before the court and reduce the issues to
be tried. Kelly proposes that a curative condition be imposed requiring him to pay Sagamore’s
costs and attorneys’ fees of this action before he is allowed to refile. He also notes that he has no
intention of refiling.
As Sagamore notes, the first and fourth of the Ohlander factors – the opposing party’s
effort and expense in preparing for trial and the present stage of litigation – do not require
lengthy discussion. A pretrial conference was held on March 20, 2014. A second pretrial
conference is scheduled for April 24, 2014, and trial is set to commence in May. The existing
briefing before this court confirms the substantial time and effort spent by both parties in
discovery, briefing and pretrial preparation.
As to the second and third factors – excessive delay and lack of diligence on the part of
the movant and insufficient explanation of the need for a dismissal – Kelly states that the rulings
this court made on March 20, 2014 are the reason he seeks dismissal at this late stage of
litigation. He states that after those rulings, he believes the costs of further litigating his claims

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against Sagamore will exceed his compensatory damages.2 This is not sufficient reason for his
delay in requesting a dismissal nor for his need for a dismissal. Federal Rule of Civil Procedure
41(a)(2) does not exist so that a plaintiff may dismiss an action to avoid costs and fees when
pretrial evidentiary rulings are not rendered in his favor. Similarly, “a party should not be
permitted to avoid an adverse decision on a dispositive motion by dismissing a claim without
prejudice.” Phillips USA, Inc. v. Allflex, USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996).
Kelly argues that this court granted a plaintiff’s motion for voluntary dismissal in another
case before it and that the curative conditions he proposes are more onerous. That case involved
one plaintiff, and the court imposed condition was that if it was refiled, the litigation would pick
up where it left off, at the summary judgment stage with the plaintiff’s response due within
fourteen days of the refiling. This case has two plaintiffs. While Kelly states that he has no
intention of refiling, a dismissal without prejudice would afford him the opportunity to change
his mind. Sagamore would possibly have to defend at trial twice. Even if Kelly voluntarily paid
Sagamore’s defense costs and fees from this action upon refiling,3 Sagamore would not have the
benefit of finality after this action is concluded. The court has taken into account the equities
facing all parties, and will not subject Sagamore to such prejudice.

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Among several evidentiary rulings, the court ruled on March 20, 2014 that Plaintiffs’
motion for summary judgment was denied as to the bad faith claims. The court did not rule on
Sagamore’s summary judgment motion with regard to the bad faith claims, but hinted that it may
be granted.
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Given Kelly’s argument in the current motion that Sagamore’s “defenses to Kelly
Bryant’s claims are exactly the same as its defenses to Hollie Bryant’s claims,” the court doubts
Kelly would voluntarily pay Sagamore’s costs and fees from this action upon refiling without a
fight over which costs and fees were attributable to him.
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Accordingly, Kelly’s motion for a dismissal without prejudice [Docket No. 101] is hereby
DENIED.
IT IS SO ORDERED this 15th day of April, 2014.

Dated this 15th day of April, 2014.

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