Garcia-Avilla et al v. Smitty's Welding Service Inc

Filing 19

ORDER granting 12 Motion to Dismiss. The Court hereby grants the Plaintiffs' motion to dismiss without prejudice, however any refiling will immediately be stayed until such time as Plaintiffs have compensated Defendant for the reasonable fees associated with its defense in this case, to be determined by the Court in the event Plaintiffs refile this action. This case is hereby dismissed without prejudice with that condition. Signed by Honorable David L. Russell on 10/23/13. (kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JOSE GARCIA-AVILLA and
LU MARIA GARCIA-AVILLA,
Plaintiffs,
v.
SMITTY'S WELDING SERVICE, INC.,
Defendant ,
INSURANCE COMPANY OF THE STATE
OF PENNSYLVANIA,

Intervenor Plaintiff,

SMITTYS WELDING SERVICE, INC.,

Defendant.

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CIV-13-864-R

ORDER
Plaintiffs filed a Motion to Dismiss Without Prejudice on September 27, 2013, stating
simply that they moved for dismissal without prejudice. Defendant Smitty's Welding Service
responded in opposition to the motion, requesting that if the Court dismiss this action, that
it order that Plaintiffs could not refile without first paying Defendant's costs with regard to
this action and the prior action filed against Defendant, which was dismissed when Plaintiffs
failed to timely secure substitute counsel. Having considered the parties' submissions, the
Court finds as follows.

The Court finds no basis for dismissal stated in Plaintiffs' motion, and therefore finds
that dismissal without prejudice is inappropriate. Plaintiffs previously filed Case No. 121200-R against Smitty's Welding Service, Inc. Following the filing of an answer and certain
motions by Defendant, Plaintiffs' counsel withdrew from ths case. The Court thereafter
dismissed the action when no new attorney entered an appearance on Plaintiffs' behalf. On
August 13, 2013, Plaintiffs filed the current action, Defendant has answered and a complaint
has been filed by the intervenor.
Rule 41(a)(2) ?is designed primarily to prevent voluntary dismissals which unfairly
affect the other side, and to permit the imposition of curative conditions.” Brown v. Baeke,
413 F.3d 1121, 1123 (10th Cir.2005) (quotation omitted). Conditions are designed to
alleviate any prejudice a defendant might otherwise suffer upon the refiling of a case. Am.
Nat'l Bank & Trust Co. v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir.1991). Consequently,
it is well settled that the court “should impose only those conditions which actually will
alleviate harm to the defendant.” Id.
The Court finds that in light of Plaintiffs' decision to file this action twice and to
ignore the Court's order regarding replacement counsel and to seek dismissal for no apparent
reason the second time, is prejudicial to Defendant. “When a plaintiff dismisses an action
without prejudice, a district court may seek to reimburse the defendant for his attorneys' fees
because he faces a risk that the plaintiff will refile the suit and impose duplicative expenses
upon him.” AeroTech, Inc. v. Estes, 110 F.3d 1523, 1528 (Okla. 1997) (citing Cauley v.
Wilson, 754 F.2d 769, 771-72 (7th Cir.1985)). Accordingly, the Court hereby grants the
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Plaintiffs' motion to dismiss without prejudice, however any refiling will immediately be
stayed until such time as Plaintiffs have compensated Defendant for the reasonable fees
associated with its defense in this case, to be determined by the Court in the event Plaintiffs
refile this action. This case is hereby dismissed without prejudice with that condition.
IT IS SO ORDERED this 23rd day of October, 2013.

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