Cho v. Macy's Inc. et al
Filing
18
Opinion - Plaintiff's Motion to Dismiss Without Prejudice 12 is GRANTED. Signed on 4/21/2011 by Judge Garr M. King. (mja)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
IN-JOO CHO,
Plaintiff,
v.
Civil Case No. 3:11-61-KI
OPINION AND ORDER
MACY’S INC., and MACY’S WEST
STORES, INC., each d/b/a “Macy’s,”
Defendants.
Richard Vangelisti
Scott Kocher
Vangelisti Kocher LLP
811 SW Naito Parkway, Suite 420
Portland, OR 97204
Attorneys for Plaintiff
Page 1 - JUDGMENT
Robert Scholz
Leslie Kocher-Moar
MacMillan, Scholz & Marks, P.C.
900 SW Fifth Avenue, Suite 1800
Portland, OR 97204
Attorneys for Defendants
KING, Judge:
Plaintiff In-Joo Cho alleges a negligence claim against Macy’s Inc. and Macy’s West
Stores, Inc. arising from injuries she sustained when she walked into a plate-glass door in a
Macy’s dressing room area. Plaintiff initiated the action in Multnomah County Circuit Court,
but, on January 18, 2011, defendants removed the case on the basis of diversity under 28 U.S.C.
§ 1332. Pending before the Court is plaintiff’s Motion for Voluntarily [sic] Dismissal Without
Prejudice [12], to which defendants object. She seeks expedited review on her motion.
FACTS
Plaintiff is a citizen of the State of Oregon, Macy’s Inc. is a Delaware corporation with a
principal place of business in Ohio, and Macy’s West Stores, Inc. is an Ohio corporation with a
principal place of business in Ohio. Plaintiff seeks damages not to exceed $350,000.
When defendants made their initial disclosures, plaintiff learned the identities of the
general contractor and sub-contractor who installed the plate-glass door. The contractors are
citizens of Oregon.
On March 19, 2011, plaintiff filed a second action in Multnomah County Circuit Court
again alleging claims of negligence against the same defendants named in this case, as well as a
third Macy’s corporation (Macy’s Retail Holdings, Inc.) and the two Oregon contractors.
///
Page 2 - OPINION AND ORDER
LEGAL STANDARDS
“A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless
a defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches,
263 F.3d 972, 975 (9th Cir. 2001). “[P]lain legal prejudice does not result merely because the
defendant will be inconvenienced by having to defend in another forum or where a plaintiff
would gain a tactical advantage by that dismissal.” Id. at 976. Further, “the need to defend
against state law claims in state court is not ‘plain legal prejudice’ arising from voluntary
dismissal of the federal claims in the district court.” Id.
DISCUSSION
Plaintiff explains that she seeks to litigate all her claims in a single forum and that she
cannot proceed here because the two contractor defendants destroy complete diversity.
Defendants want to force plaintiff to litigate the same case in two separate courts, to her great
detriment and expense. The only reason defendants give for objecting to plaintiff’s voluntary
dismissal is that the issues have been litigated in the federal forum since January and that
plaintiff is “circumvent[ing] a valid removal by filing a new lawsuit in state court and adding
additional defendants.” Defs.’ Res. 2.
Plaintiff is not engaging in forum shopping or attempting to gain some sort of tactical
advantage over defendants. Plaintiff simply seeks to sue all the defendants potentially
responsible for her injury in the same action and in the same forum, and requiring this federal
litigation to proceed would likely result in duplicative litigation. Defendants do not assert
plaintiff has fraudulently joined the two Oregon contractors. Had plaintiff sought to amend her
complaint to add the two non-diverse defendants, I would have remanded the case to state court
Page 3 - OPINION AND ORDER
under 28 U.S.C. § 1447(e).1 The interests of justice and judicial economy favor dismissing this
case.
CONCLUSION
Based on the above, I grant plaintiff’s Motion for Voluntarily [sic] Dismissal Without
Prejudice [12] and dismiss this case without prejudice and without costs or fees to either party.
Dated this
20th
day of April, 2011.
/s/ Garr M. King
Garr M. King
United States District Judge
1
The statute provides, “If after removal the plaintiff seeks to join additional defendants
whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit
joinder and remand the action to the State court.”
Page 4 - OPINION AND ORDER
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