Rodriguez et al v. Warren Theatres LLC et al

Filing 150

ORDER granting 133 Plaintiffs' Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 4/12/2017. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
NAIR RODRIGUEZ, as next of kin to )
THE ESTATE OF LUIS RODRIGUEZ, )
et al.,
)
)
Plaintiffs,
)
)
v.
)
)
WARREN THEATRES, LLC, et al.,
)
)
Defendants.
)

Case No. CIV-16-150-D

ORDER
This matter comes before the Court upon Plaintiffs’ Motion for Dismissal Without
Prejudice [Doc. No. 133], filed pursuant to Fed. R. Civ. P. 41(a)(2).

All defendants

oppose the Motion, objecting to a dismissal without prejudice to refiling and alternatively
requesting a dismissal order that imposes conditions for refiling.

They propose limiting

Plaintiffs’ claims and evidence in a subsequent case to what is currently available in this
case, and requiring Plaintiffs and their counsel “to pay all costs incurred in [this action] as
a condition precedent to their ability to re-file this litigation.”
Obj. [Doc. No. 134] at 11 (citing Fed. R. Civ. P. 41(d)).

See Warren Theatres Defs.’

Plaintiffs have filed a reply brief,

and the Motion is at issue.
Plaintiffs ask to dismiss their action asserting claims under 42 U.S.C. § 1983 and
state law regarding the death of Luis Rodriguez. The stated reason is that “Plaintiff [Nair
Rodriguez] has had to temporarily relocate to Puerto Rico for an undetermined amount of
time” due to a death in her family; “this will result in significant travel expense for the

Plaintiff and as she is unemployed, she does not have the means to travel back and forth to
Oklahoma from Puerto Rico in order to continue pursuing justice for her husband at this
time.”

Pls.’ Mot. Dismissal [Doc. No. 133], ¶¶ 5-6.

Mrs. Rodriguez is the personal

representative of the Estate of Luis Rodriguez, which is the primary plaintiff in the case
and the only plaintiff for a § 1983 claim.

The Motion is silent concerning Plaintiff

Luinahi Rodriguez except to state that she joins in the request for dismissal.

Id. at 1.

“Dismissal under Rule 41(a)(2) is within the sound discretion of the court.”

Clark

v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993); see Brown v. Baeke, 413 F.3d 1121, 1123
(10th Cir. 2005). A district court may allow a plaintiff to dismiss an action “on terms that
the court considers proper.” Fed. R. Civ. P. 41(a)(2). “‘The rule is designed primarily to
prevent voluntary dismissals which unfairly affect the other side, and to permit the
imposition of curative conditions.’” Brown, 413 F.3d at 1123 (quoting Phillips USA, Inc.
v. Allflex USA, Inc., 77 F.3d 354, 357 (10th Cir. 1996)). “Absent ‘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); accord Brown, 413 F.3d at 1123.
Determining whether an opposing party will suffer “legal prejudice” from a
dismissal requires a consideration of “practical factors 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
the litigation.’”

See Brown, 413 F.3d at 1124 (quoting Ohlander, 114 F.3d at 1537); see

also Clark, 13 F.3d at 1411. “Prejudice does not arise simply because a second action

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has been or may be filed against the defendant, which is often the whole point in dismissing
a case without prejudice.” Brown, 413 F.3d at 1124 (citation omitted).
Upon consideration of the unique circumstances presented in this case, the Court
finds that a dismissal of the case without prejudice and without any conditions to refiling
would result in legal prejudice to Defendants, but a dismissal subject to curative conditions
should be permitted.

Plaintiffs’ request comes more than two years after they originally

commenced this action in state court and after a substantial procedural history; the case
was removed upon Plaintiffs’ filing of a third amended petition adding a § 1983 claim.
The instant Motion was filed after most defendants had filed dispositive motions and
shortly before the May 5, 2017 deadline to complete discovery.

Defendants have

invested substantial time, effort, and expense in defending Plaintiffs’ claims and preparing
their cases, including making expert disclosures and filing dispositive motions.
potential prejudice to Defendants is significant.

Thus, the

They argue persuasively that it would be

inequitable to allow Plaintiffs to restart the case simply because Mrs. Rodriguez’s
commitment to pursuing it has temporarily waned. 1
On the other hand, Mrs. Rodriguez’s reason for dismissing the case has developed
recently, and there has been no lack of diligence on her part in prosecuting the action.

To

the contrary, Mrs. Rodriguez has expressed extreme frustration – to the point of engaging

1

The Court is not persuaded by Defendant’s argument, however, that Plaintiffs’ request for
dismissal is designed to avoid summary judgment in Defendants’ favor and to allow Plaintiffs additional
time to marshal facts and evidence to support their claims. Despite Defendants’ confidence in the strength
of their defenses, it would be inappropriate to prejudge the merits of Plaintiffs’ claims before the summary
judgment motions are fully briefed. Further, despite Plaintiffs’ lack of an expert witness regarding police
practices, an expert opinion is not necessarily required to prove an excessive force claim.

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in conduct for which Defendants sought sanctions – regarding delays in the litigation.
Plaintiffs and their counsel have been actively participating in discovery, and the length of
time the case has been pending is due partly to circumstances beyond their control, such as
motion practice and the need for court rulings.

It would be inequitable to require

Plaintiffs to push forward under circumstances where Mrs. Rodriguez is presently absent
from the state and unavailable to participate in the litigation.

Defendants’ contention that

Mrs. Rodriguez need not be present to pursue the case is unpersuasive in light of her status
as the representative of the decedent’s estate (the § 1983 plaintiff) and Defendants’
recently-filed motion to compel discovery based on her alleged lack of cooperation,
particularly considering her past level of involvement.

On prior occasions, Defendants

have complained that Mrs. Rodriguez was too involved in discovery.

The deadline to

complete discovery has not expired, but was quickly approaching when the Motion was
filed. 2
The question remains what conditions could prevent prejudice to Defendants if
Plaintiffs dismiss this case and later file a second action based on the same claims against
the same defendants.

Rule 41 provides that in this situation, upon refiling, a district court:

“(1) may order the plaintiff to pay all or part of the costs of that previous action; and
(2) may stay the proceedings until the plaintiff has complied.”

See Fed. R. Civ. P. 41(d).

Also, a district court has inherent authority to impose conditions “designed to alleviate any

2

After the Motion was filed, the Court granted Defendants’ unopposed motion to stay all unexpired
deadlines in the Scheduling Order until Plaintiffs’ Motion is decided. See 4/4/17 Order [Doc. No. 141].

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prejudice a defendant might otherwise suffer upon refiling of an action.”

See Am. Nat’l

Bank & Trust Co. v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir. 1991).
In this case, Defendants’ claim of prejudice is based almost exclusively on their
investment of time and resources in defending this case, conducting discovery, and (as to
some defendants) filing summary judgment motions. An appropriate way to alleviate this
burden is to order that all discovery conducted in this case can be used in a refiled case and
cannot be duplicated.

Under this condition, absent agreement of the parties, no witness

will be deposed a second time; no completed deposition will be reopened; no written
discovery will be repeated; and limits on discovery imposed by the Federal Rules of Civil
Procedure may not be exceeded. 3

See Fed. R. Civ. P. 30(a)(2) & 33(a).

If the discovery

conducted in this case carries over to a new case, Defendant’s discovery expenses will not
be wasted or incurred a second time.
Defendants did incur costs, however, that will not be recoverable after the dismissal
or would be duplicated in a future case.

The Court finds that some of these costs should

be borne by Plaintiffs if they choose to refile, including filing fees, service fees, and
copying costs that are authorized to be taxed by the Clerk under 28 U.S.C. § 1920. 4
Accordingly, the Court will authorize Defendants to file a bill of costs after the dismissal

3

If any outstanding discovery requests in this case have not been answered or responded to, or if
sufficient answers or production have not been made, it is the Court’s intention that the party issuing such
requests can move to compel discovery in the manner provided by Fed. R. Civ. P. 37 or comparable
procedural rule in any refiled case.
4

Deposition costs ordinarily recoverable under § 1920 will not be incurred a second time in any
refiled case under the Court’s first condition concerning discovery.

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of this action as provided by LCvR54.1, and will direct the Clerk to determine taxable costs
in the usual manner, except deposition costs shall not be included (see supra note 4).

This

taxation of costs will not be included in the judgment in this case, but payment will be
required as a condition to refiling a second § 1983 action pursuant to Rule 41(d). 5
For these reasons, the Court finds that Plaintiffs should be permitted to dismiss their
action without prejudice to refiling but conditions upon any future filing should be imposed
as set forth in this Order.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Dismissal Without
Prejudice [Doc. No. 133] is GRANTED, as set forth herein.

This action is DISMISSED

WITHOUT PREJUDICE to refiling, subject to the following conditions:
• All discovery conducted in this case can be used in a refiled case and no prior
discovery can be duplicated.
• Taxable costs of this action shall be determined by the Clerk as provided by
LCvR54.1, except deposition costs shall not be included, and payment of
such costs shall be a condition to refiling a second action pursuant Fed. R.
Civ. P. 41(d).
A separate judgment of dismissal under Rule 41(a)(2) shall be entered.
IT SO ORDERED this 12th day of April, 2017.

5

If Plaintiffs refile a state court action instead of a federal action, then this condition may be
enforced under state law. See Okla. Stat. tit. 12, § 684(D).

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