REPUBLICAN PARTY OF PENNSYLVANIA et al v. CORTES
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE GERALD J. PAPPERT ON 1/27/17. 1/27/17 ENTERED AND COPIES E-MAILED.(ti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
REPUBLICAN PARTY OF
PENNSYLVANIA, et al.,
PEDRO A. CORTÉS, in his capacity as
Secretary of the Commonwealth of
January 27, 2017
Federal Rule of Civil Procedure 41(a)(2) allows for voluntary dismissal of a complaint
“only by court order, on terms that the court considers proper.” While motions under Rule
41(a)(2) are left to the discretion of the district court, complaints should be dismissed without
prejudice unless dismissal would cause plain legal prejudice to the defendant, beyond the mere
threat of a second lawsuit. Dentsply Intern. Inc. v. Bio-Pure Products Inc., No. 14-0848, 2015
WL 4902820 (M.D. Pa. Aug. 17, 2015); 9 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2364 (3d ed. 2016).
Courts should take a liberal approach in deciding whether to grant a Rule 41(a)(2) motion
to dismiss without prejudice. In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 863 (3d Cir.
1990). Courts in this Circuit consider (1) the excessive and duplicative expense of a second
litigation; (2) the effort and expense incurred by the defendant in preparing for trial; (3) the
extent to which the current suit has progressed; and (4) the plaintiff’s diligence in bringing the
motion to dismiss. Citizens Sav. Ass’n v. Fanciscus, 120 F.R.D. 22, 25 (M.D. Pa. 1988).
“Voluntary motions to dismiss are generally found prejudicial where a plaintiff seeks to start its
litigation anew in the advanced stages of a lawsuit, after discovery has closed and the parties
have filed dispositive motions or prepared for trial.” Yazzie v. GlaxoSmithKline LLC, No. 121006, 2013 WL 3993455, at *2 (E.D. Pa. Aug. 5, 2013).
The risk of excessive and duplicative expense from subsequent litigation is not
substantial here. The parties have not conducted discovery in this case and the only motion
decided was the Plaintiffs’ motion for a temporary restraining order and preliminary injunction.
See (ECF No. 2). Similarly, the effort and expense incurred by the Commonwealth in preparing
for trial is relatively minimal. While the Court appreciates the Commonwealth’s effort and
expense in defending the case to this point, the case is still in its early stages. For the same
reason the third factor—the extent to which the suit has progressed—favors dismissal without
prejudice. Finally, the Plaintiffs were diligent in bringing this motion to dismiss. The Court
entered its Order denying the Plaintiffs’ motion for a temporary restraining order and preliminary
injunction on November 3, 2016. (ECF No. 22.) The Plaintiffs moved to dismiss on November
18, 2016. (ECF No. 25.) Because the factors noted above do not suggest a plain legal prejudice
to the Commonwealth, the Plaintiffs’ motion is granted.
An appropriate order follows.
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.
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