Rivera-Olivera et al v. Velez-Velez et al

Filing 86

OPINION AND ORDER. GRANTED 62 MOTION for Voluntary Dismissal. Signed by Judge Salvador E. Casellas on 5/22/2017.(JRD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

MARIAN RIVERA-OLIVERA, ET AL.,
Plaintiffs,
v.
Civil No. 13-1887 (SEC)
LAURA M. VELEZ-VELEZ, ET AL.,
Defendants.

DAMARIS MIRANDA-MAISONAVE,
Petitioner,
v.

Civil No. 14-1745 (SEC)

LAURA M. VELEZ-VELEZ, ET AL,
Defendants.

OPINION AND ORDER
Pending before the Court is Plaintiffs’ motion for voluntary dismissal under Fed.
R. Civ. P. 41(a)(2), ECF No. 62, Defendants’ responses, ECF Nos. 67 & 70, and
Plaintiffs’ reply, ECF No. 71. The motion is granted.
I.

Factual and Procedural background
In these consolidated actions, seven former employees (Plaintiffs) 1 of the Puerto

Rico Environmental Quality Board (EQB) bring claims of political discrimination
against three EQB officers—the President, the Administration Director, and the Human
Resources Director (Defendants)—in their official and individual capacities. Following

1

The plaintiffs in Civ. No. 13-1887 are Marian Rivera-Olivara, Madeline Marrero-Medina, Kathia FernándezRivera, Aurea Rivera-Falú, Hector R. Alonso-Rodríguez, and Yarot García-Ortiz. In Civ. No. 14-1745, the only
plaintiff is Damaris I. Miranda-Maisonave.

Civil Nos. 13-1887 (SEC) & 14-1745 (SEC)

Page 2

the denial of Defendants’ motion to dismiss, the parties engaged in discovery for
approximately ten months. After Plaintiffs failed to locate three potential witnesses they
intended to depose, Plaintiffs filed a motion for voluntary dismissal without prejudice
under Fed. R. Civ. P. 41(a)(2). In response, Defendants argue that the dismissal should
be with prejudice. They also seek reimbursement of litigation costs and expenses.
II.

Standard of Review
Federal Rule of Civil Procedure 41(a)(2) provides that, after the defendant has

answered the complaint or filed a motion for summary judgment, “an action may be
dismissed at the plaintiff’s request only by court order, on terms that the court considers
proper.” In this analysis, the court is responsible for exercising its discretion to ensure
that “ ‘no other party will be prejudiced.’ ” Doe v. Urohealth Sys., Inc., 216 F.3d 157,
160 (1st Cir. 2000) (quoting P.R. Mar. Shipping Auth. v. Leith, 668 F.2d 46, 50 (1st Cir.
1981)); Colón–Cabrera v. Esso Standard Oil Co., 723 F.3d 82, 87 (1st Cir. 2013). A
district court abuses its discretion in countenancing a dismissal without prejudice only
where “the defendant will suffer legal prejudice.” Id. (quoting Leith, 668 F.2d at 50).
“Neither the prospect of a second suit nor a technical advantage to the plaintiff”
constitutes such prejudice. Leith, 668 F.2d at 50.
III.

Applicable Law and Analysis

When deciding whether to grant a motion for voluntary dismissal, district courts
consider the following factors: (1) the effort and costs incurred by the defendants in
preparation for trial; (2) excessive delay and want of diligence in prosecuting the action;
(3) the legitimacy (or lack thereof) of the explanation for the need to take a dismissal;
and (4) whether a summary judgment motion has been filed by the defendants. Doe, 216
F.3d at 160 (quoting Pace v. S. Express Co., 409 F.2d 331, 334 (7th Cir. 1969)). That is
not to say that courts must “analyze each factor or limit their consideration to these
factors...” Id. The “ ‘enumeration of the[se] factors ... is not equivalent to a mandate that
each and every such factor be resolved in favor of the moving party before dismissal is
appropriate. It is rather simply a guide for the trial judge, in whom the discretion

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Page 3

ultimately rests.’ ” Id. (quoting Tyco Labs., Inc. v. Koppers Co., 627 F.2d 54, 56 (7th
Cir. 1980)). “The very concept of discretion presupposes a zone of choice within which
the trial courts may go either way [in granting or denying the motion.]” Doe, 216 F.3d
at 160 (parenthetically quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 971 (8th Cir.
1984). The Court addresses each factor sequentially.
The first factor—the defendants’ efforts and expenses in preparation for trial—
favors dismissal with prejudice. The parties have engaged in substantial discovery
including interrogatories, requests for production of documents, and depositions.
Indeed, to properly respond to Plaintiffs’ discovery requests, Defendants conducted an
extensive review of personnel files and ultimately produced thousands of pages.
Thereafter, the parties took more than fifteen depositions, seven of which were taken by
Defendants.
The second factor, on the other hand, cuts in Plaintiffs’ favor. Plaintiffs have been
diligent in prosecuting their case. They made timely requests to enlarge the discovery
cut-off date and complied with all the case management deadlines. Moreover, “they have
fully availed themselves of the discovery mechanisms provided by the Federal Rules of
Civil Procedure, thereby evincing diligence.” Mateo v. Empire Gas Co., 287 F.R.D. 124,
128 (D.P.R. 2012). Defendants complain that Plaintiffs waited 17 months before moving
for voluntary dismissal. But Defendants do not explain why Plaintiffs should have
moved for voluntary dismissal earlier.
The timing of Plaintiffs’ request is tied to the third factor—the legitimacy of the
explanation for the need to move for dismissal. Plaintiffs explain that they seek
voluntary dismissal because they were unable to locate three former EQB employees
that they intended to depose. According to Plaintiffs, taking the depositions of these
former employees is necessary to have a clear picture of Defendants’ hiring and firing
practices. While the Court finds Plaintiffs’ statement somewhat conclusory, given
Defendants’ silence on the issue, the Court accepts their explanation as legitimate.

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The last factor clearly favors dismissal without prejudice since no motions for
summary judgment have been lodged. Defendants attempt to escape this inevitable
conclusion by pointing out that they filed a motion to dismiss at an early stage. This
argument goes nowhere.
To start, a motion to dismiss is not equivalent to a motion for summary judgment.
See e.g. Aamot v. Kassel, 1 F.3d 441, 444 (6th Cir. 1993) (Motion to dismiss for failure
to state a claim, even where it was accompanied by affidavits and exhibits, was not a
“motion for summary judgment” within meaning of Fed. R. Civ. P. 41(a)(1)). But more
importantly, Defendants’ motion to dismiss was denied long before Plaintiffs moved for
voluntary dismissal. Clearly then, Plaintiffs are not seeking “to avoid an imminent
adverse ruling.” Colón-Cabrera, 723 F.3d at 88 (citation omitted); cf. Phillips USA, Inc.
v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996) (“We agree with the district court
that a party should not be permitted to avoid an adverse decision on a dispositive motion
by dismissing a claim without prejudice”).
After considering the equities of this case together with the foregoing factors, the
Court finds that dismissal without prejudice is the proper course of action.
The Court also denies Defendants’ request for the imposition of litigation costs.
It is true that Rule 41(a)(2) allows the district court to grant voluntary dismissal “on
terms that the court considers proper.” Fed. R. Civ. Pro. 41(a)(2). Often this entails the
imposition of litigation costs and expenses. “The purpose of such awards is generally to
reimburse the defendant for the litigation costs incurred, in view of the risk (often the
certainty) taken by the defendant that the same suit will be refiled and will impose
duplicative expenses upon him.” Colombrito v. Kelly, 764 F.2d 122, 133 (2d Cir.1985).
However, these costs do not include “ ‘those expenses for items that will be useful in
another action or that were incurred by the defendant unnecessarily.’ ” See CarriónRamos v. Nestle De Puerto Rico, Inc., Civ. No. 14-1137, 2015 WL 9239775, at *3
(D.P.R. Dec. 17, 2015) (quoting 9 Wright & Miller, Federal Practice and Procedure:
Civil 3d § 2366, at 524-26 (3ed. 2008)). Here, Defendants do not even specify the costs

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for which they seek reimbursement and the Court “cannot envision how more than only
a minimal amount of overlap in expenses and time may occur with the filing of a new
lawsuit.” Harrell v. G4S Secure Sols. (USA) Inc., Civ. No. 12- 569-VEH, 2013 WL
982485, at *2 (N.D. Ala. Mar. 8, 2013). Plaintiffs, however, “may not oppose the use of
existing discovery in any subsequent action.” Carrión-Ramos, 2015 WL 9239775, at *4.
Plaintiffs’ motion for voluntary dismissal is granted. Judgment will be entered
accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 22nd day of May, 2017.
s/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge