Batton v. Mashburn et al
Filing
41
ORDER granting 36 Motion to Dismiss, as more fully set out. Signed by Honorable David L. Russell on 4/22/16. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DAVID BATTON,
Plaintiff,
v.
JAMES GREGORY MASHBURN,
individually, and in his official
capacity as District Attorney for the
Twenty-first Prosecutorial District,
(aka Greg Mashburn); and JOHN
and JANE DOES,
Defendants.
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Case No. CIV-14-651-R
ORDER
Plaintiff David Batton seeks to voluntarily dismiss this action without prejudice,
pursuant Federal Rule of Civil Procedure 41(a)(2). Defendant James Mashburn opposes
the motion or, alternatively, asks the Court to impose certain conditions on dismissal.
Having considered the parties’ arguments, the Court finds as follows.
I.
Background
This action arises from Plaintiff Batton’s termination from the Cleveland County
District Attorney’s office. During the pendency of the litigation, Defendant Mashburn has
filed two partially successful motions to dismiss and the parties have engaged in some
amount of discovery. Before the close of discovery and before any dispositive motions
were filed, Plaintiff filed the instant motion seeking to dismiss his case without prejudice
because “he is currently unable, physically or mentally, of proceeding in this litigation at
this time.” In support, he recounted several unfortunate occurrences that have befallen
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him since the inception of the litigation: (1) a leg injury requiring surgery in September
2015 that required rehabilitation through February 2016; (2) his wife unexpectedly filing
for divorce in August 2015, finalized January 2016; (3) Plaintiff’s brother unexpectedly
passing away on January 16, 2016; and (4) impending shoulder surgery. Plaintiff argues
that Defendant will not be prejudiced because litigation is in the early stages of discovery
and no depositions have been taken.
Although Plaintiff provides scant authority in support of his motion and his
analysis of the standard for prejudice is at best cursory, the undersigned will grant
dismissal without prejudice, based on certain conditions as set forth below.
II.
Standard for Rule 41(a)(2) dismissals without prejudice
Under Rule 41(a)(2), “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). As the
Tenth Circuit has stated:
‘The rule is designed primarily to prevent voluntary
dismissals which unfairly affect the other side, and to permit
the imposition of curative conditions.’ Phillips USA, Inc. v.
Allflex USA, Inc., 77 F.3d 354, 357 (10th Cir.1996) (quotation
omitted). These matters fall within the district court's
discretion and ‘[r]eversal requires a clear abuse of discretion.’
Am. Nat'l Bank & Trust Co., 931 F.2d at 1412. But ‘[a]bsent
“legal prejudice” to the defendant, the district court normally
should grant such a dismissal.’ Ohlander v. Larson, 114 F.3d
1531, 1537 (10th Cir.1997).
Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005). Moreover:
Prejudice does not arise simply because a second action has
been or may be filed against the defendant . . . which is often
the whole point in dismissing a case without prejudice.
Rather, prejudice is a function of other, practical factors
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including: ‘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.’ Ohlander,
114 F.3d at 1537. These factors are neither exhaustive nor
conclusive; the court should be sensitive to other
considerations unique to the circumstances of each case. Id.
And ‘[i]n reaching its conclusion, the district court should
endeavor to insure substantial justice is accorded to both
parties, and therefore the court must consider the equities not
only facing the defendant, but also those facing the plaintiff.’
County of Santa Fe v. Public Serv. Co., 311 F.3d 1031, 1048
(10th Cir.2002) (quotation omitted).
Id. at 1124.
Here, while Defendant opposes dismissal, the “legal prejudice” required to prevent
dismissal is not present. Nevertheless, the undersigned is mindful that Defendant has
expended certain resources that may not be useful to him should Plaintiff refile this
action. With this in mind, the Court exercises its discretion to impose the following
conditions.
III.
Curative Conditions
1.
Motions to Dismiss
Defendant filed two partially successful motions to dismiss. As a result of these
motions, Plaintiff’s First Amendment freedom of speech, tortious interference with
contract,1 and tortious interference with prospective economic advantage claims were
dismissed with prejudice and his due process and intentional infliction of emotional
distress claims were dismissed without prejudice. His claims for freedom of association
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Plaintiff consented to the dismissal of this claim; had Plaintiff not consented, the Court nevertheless
would have concluded that this claim was due to be dismissed with prejudice.
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and conspiracy remain. As a condition of voluntary dismissal, Defendant asks the Court
to dismiss with prejudice those claims dismissed without prejudice. The Court declines
do to so. However, should Plaintiff refile the lawsuit in this Court, all pleadings,
discovery, and orders from this action will be binding in a later filed action.
2.
Attorneys’ Fees
Citing Rule 54, Defendant asks the Court to condition dismissal on the payment of
fees because Section 1983 entitles prevailing parties to fees. Doc. No. 40 at 4. However,
Defendant has not made the attendant showing under Section 1983 that an award of
attorneys’ fees is proper. Houston v. Norton, 215 F.3d 1172 (10th Cir. 2000) (“prevailing
defendant may recover an attorney’s fee award only where the suit was vexatious,
frivolous, or brought to harass or embarrass the defendant.”) (quotations omitted). Fees
on this basis are therefore denied.
However, where, as here, a plaintiff has dismissed an action without prejudice, the
defendant is entitled to recover duplicative fees and expenses. AeroTech, Inc. v. Estes,
110 F.3d 1523, 1528 (10th Cir. 1997)(“[w]hen 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”). Courts in the Tenth Circuit under similar circumstances have
ordered that in the event a plaintiff who voluntarily dismisses a lawsuit files a subsequent
lawsuit, he must compensate the defendant for duplicative expenses. See Brown v. Baeke,
413 F.3d 1121, 1126 (10th Cir. 2005) (affirming curative condition that “plaintiffs were
required to pay fees and expenses incurred by defendant as a result of duplicative effort
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that could not be avoided”); Agjunction LLC v. Agrian Inc., No. 14-CV-2069-DDC-KGS,
2015 WL 416444, at *6 (D. Kan. Jan. 30, 2015) (same). In accordance with these cases,
the Court conditions dismissal of this action on Plaintiff reimbursing Defendant for
duplicative fees and expenses incurred in a subsequent lawsuit. Upon the conclusion of a
subsequent lawsuit, Defendant may move the Court for reimbursement, providing a
detailed showing of the fees and expenses incurred in the subsequent lawsuit that could
have been avoided had this matter continued. See Brown, 413 F.3d at 1126 (affirming
similar procedure); Agjunction, 2015 WL 416444, at *6 (utilizing similar procedure). The
Court may then order Plaintiff to pay such fees and expenses. The Court retains
jurisdiction to hear such a motion. See Cactus Petroleum Corp. v. Continental Resources,
Inc., No. CIV-13-0798-HE, 2013 WL 5656107 (W.D. Okla. Oct. 16, 2013) (retaining
jurisdiction to determine fees); Agjunction LLC v. Agrian Inc., 2015 WL 416444, at *6
(retaining jurisdiction to entertain motion on fees).2
3.
Verification of Interrogatories
Defendant also asks that as a condition of dismissal, Plaintiff be required to verify
his interrogatory responses. This request is GRANTED. Plaintiff is directed to provide
Defendant with a verification of his interrogatory responses by April 29, 2016.
IV.
Conclusion
Accordingly Plaintiff’s motion to dismiss without prejudice (Doc. No. 36) is
GRANTED, with the following conditions:
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The Court notes that Defendant has submitted an affidavit attaching fees incurred in connection with the
current litigation. However, it is not apparent from Defendant’s brief or affidavit which of those expenses
Defendant anticipates would be duplicative or wasted effort.
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(1)
Plaintiff must submit his verification to his interrogatory responses to
Defendant by April 29, 2016;
(2)
should Plaintiff choose to refile an action in this Court raising substantially
the same issues as those involved here, all pleadings, discovery, and orders
in this action will remain binding on the parties; and
(3)
should Plaintiff choose to refile an action in any forum raising substantially
the same issues as those involved here, at the conclusion of such an action,
Defendant may file a motion in this Court seeking reimbursement for
duplicative fees and expenses as set forth herein. The Court retains
jurisdiction to hear such a motion.
IT IS SO ORDERED this 22nd day of April, 2016.
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