Nicholson v. Lew

Filing 22

MEMORANDUM DECISION AND ORDER ADOPTING 19 REPORT AND RECOMMENDATIONS: case is dismissed with prejudice. Signed by Judge David Nuffer on 3/29/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
H.A. FOLSOM & ASSOCIATES, INC., a
Utah corporation d/b/a Folsom Associates,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING [37] PLAINTIFF’S
MOTION FOR VOLUNTARY
DISMISSAL WITHOUT PREJDUICE

v.
Case No. 2:16-CV-00160-DN
MICHAEL CAPEL, an individual,
District Judge David Nuffer
Defendant.
Plaintiff H.A. Folsom & Associates, Inc. (“Folsom”) moved 1 for the voluntary dismissal
of his Complaint 2 under Fed. R. Civ. P. 41(a)(2). At the time the motion was filed, Defendant
Michael Capel (“Mr. Capel”) had already served his Answer to the Complaint. 3 Folsom argues
that granting the dismissal is appropriate because “Mr. Capel would not be prejudiced in any
way” 4 by the dismissal.
Mr. Capel responded by filing a “conditional notice of non-opposition” to the Motion. 5
Mr. Capel took issue with the request for dismissal due to the “significant amount of time and
effort” that have been expended to date in the case. 6 Mr. Capel then requested that the dismissal

1

Motion for Voluntary Dismissal Without Prejudice (“Motion”), docket no. 37, filed June 16, 2017.

2

Amended Complaint (“Complaint”), docket no. 30, filed February 23, 2017.

3

Answer and Defenses of Michael Capel to Amended Complaint, docket no. 34, filed March 9, 2017.

4

Motion at 1.

5

Defendant Michael Capel’s Response and Conditional Notice of Non-Opposition to Plaintiff’s Motion for
Voluntary Dismissal Without Prejudice (“Response”), docket no. 39, filed June 21, 2017.
6

Response at 5.

be conditioned upon Folsom paying for Mr. Capel’s legal fees and costs to date. 7 Mr. Folsom
replied 8 arguing that the circumstances here do not warrant the payment of Mr. Capel’s fees. 9
“Absent ‘legal prejudice’ to the defendant, the district court normally should grant” a
plaintiff’s request for voluntary dismissal after a defendant has answered the complaint. 10 “The
parameters of what constitutes “legal prejudice” are not entirely clear” but a district court
“should endeavor to insure substantial justice is accorded to both parties.” 11
In circumstances where a plaintiff voluntary dismisses an action in federal court and
intends to refile in another forum, another federal circuit has held that “there is no basis” to
conclude “that the defendant will be prejudiced” by declining to condition voluntary dismissal on
the payment of attorney fees and costs. 12 This is especially true “when federal discovery will be
useable” in the other forum. 13
The circumstances are similar here: Folsom intends to refile the action in another
forum. 14 The work performed to date in the present action will be useable in any subsequent
filing. Declining to condition Folsom’s voluntary dismissal on an award of fees and costs to Mr.
Capel does not constitute legal prejudice to Mr. Capel. The Motion will be GRANTED and the
case will be dismissed without prejudice.

7

Id.

8

Reply in Support of Motion for Voluntary Dismissal Without Prejudice (“Reply”), docket no. 40, filed June 23,
2017.
9

Id. at 2.

10

Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).

11

Id.

12

Davis v. USX Corp., 819 F.2d 1270, 1276 (4th Cir. 1987).

13

Id.

14

Motion at 2; Response at 5 (Mr. Capel identifies that Folsom intends to refile in Colorado).

2

ORDER
IT IS HEREBY ORDERED THAT the Motion 15 is GRANTED, unconditionally.
Defendant’s request that this order be accompanied by an award of fees and costs 16 is DENIED.
This case is DISMISSED, without prejudice. The clerk is directed to close the case.
Signed March 29, 2018.
BY THE COURT

________________________________________
David Nuffer
United States District Judge

15

Motion for Voluntary Dismissal Without Prejudice (“Motion”), docket no. 37, filed June 16, 2017.

16
Defendant Michael Capel’s Response and Conditional Notice of Non-Opposition to Plaintiff’s Motion for
Voluntary Dismissal Without Prejudice at 3, docket no. 39, filed June 21, 2017.

3