Varney v. Target

Filing 22

MEMORANDUM DECISION AND ORDER granting 17 Motion to Dismiss Without Prejudice. Signed by Judge Tena Campbell on 4/11/16 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION

CHRISTI VARNEY,
Plaintiff,

ORDER
AND

vs.

MEMORANDUM DECISION

TARGET CORPORATION,

Case No. 1:15-CV-64-TC

Defendant.

Defendant Target Corporation removed this case from state court in April 2015 on the
basis of diversity jurisdiction. (See Def.’s Notice of Removal at 2, Docket No. 2.) Now Plaintiff
Christi Varney requests permission to voluntarily dismiss her case without prejudice under
Federal Rule of Civil Procedure 41(a)(2) because she has discovered “additional parties who will
strip this court of jurisdiction.” (Pl.’s Mot. Dismiss Without Prejudice at 1, Docket No. 17.)
Under Federal Rule of Civil Procedure 41(a)(2), after an answer or motion for summary
judgment has been filed in response to the plaintiff’s complaint, and without the defendant’s
stipulation, “an action may be dismissed at the plaintiff’s request only by court order, on terms
that the court considers proper.”1
Target opposes the motion. First, it disagrees with Ms. Varney’s choice to file a motion
under Rule 41(a)(2). Viewing the motion as procedurally flawed, Target asserts that “[i]f
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Because Target has filed an answer and does not stipulate to dismissal without prejudice,
Ms. Varney may not dismiss her case under Rule 41(a)(1), which allows dismissal without a
court order.

plaintiff believes that claims against non-diverse parties are warranted, then the proper procedure
would be for the plaintiff to move to amend her complaint, and submit the proposed amended
complaint for Target’s and the Court’s scrutiny.” (Id. at 2.) To support its argument, Target cites
to Osgood v. Discount Auto Parts, LLC, 955 F. Supp. 2d 1352 (S.D. Fla. 2013). But Osgood is
not helpful because its procedural posture is altogether different. The Osgood court analyzed a
motion for joinder under Federal Rule of Civil Procedure 15, not a motion under Rule 41(a)(2).
See id. at 1354. Target does not cite to any case law supporting its position that Ms. Varney is
limited to filing a motion to amend her complaint.
Second, Target argues that dismissal should not be allowed because the motion,
consisting of one sentence, insufficiently explains the need for dismissal. (See Def.’s Opp’n to
Mot. Dismiss, Docket No. 18.) Ms. Varney simply says, “This Motion is based upon discovery
of additional parties who will strip this court of [diversity] jurisdiction under 28 U.S.C. § 1332.”
(Mot. Dismiss Without Prejudice at 1, Docket No. 17.) Target contends that Ms. Varney must
disclose “the new parties’ identities and the factual basis for plaintiff’s alleged claims against
them” so that Target and the court have a meaningful opportunity to evaluate the circumstances
and the basis for Ms. Varney’s motion to dismiss. (See Opp’n at 2-3.) Again, Target does not
cite to any case law supporting its assertion that Ms. Varney must provide more information to
the court or that the court’s analysis must address the question of whether the additional parties
may be joined in this suit.
“Absent ‘legal prejudice’ to the defendant, the district court normally should grant such a
dismissal” under Rule 41(a)(2). Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).
Unless dismissal of Ms. Varney’s complaint would result in “legal prejudice” to Target, the court
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will grant her request.
To determine whether dismissal would result in legal prejudice to Target, the court will
consider a series of non-exclusive factors articulated by the Tenth Circuit Court of Appeals.
Although “[t]he parameters of what constitutes ‘legal prejudice’ are not entirely clear,” the court
should consider relevant factors such as: “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 litigation.” Id. at 1537 (quotation marks and
citation omitted).
Under the circumstances, the court finds that Target will not be legally prejudiced by
dismissal of Ms. Varney’s complaint. First, no substantial discovery has occurred. Although this
case was filed in April 2015, the case management order was not filed until October 2015, and
Target served its first set of discovery on January 19, 2016, only nine days before Target filed its
opposition to Ms. Varney’s motion to dismiss. In addition, nothing in the record suggests that
Target has incurred considerable expense. Second, nothing in the record suggests excessive
delay or lack of diligence on Ms. Varney’s part. Third, Ms. Varney sufficiently explained why
she wishes to dismiss her complaint.2 Although Target asserts that Ms. Varney must disclose the
names of the non-diverse parties and the claims Ms. Varney anticipates filing against those
potential parties, Target does not cite to any case suggesting that Ms. Varney must be that
specific. Fourth, this case is relatively new. The case management order was entered in October
2015, very little discovery has been conducted since then, and no dispositive motions have been

2

The court takes the word of her attorneys, who drafted and signed the papers as officers
of the court.
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filed.
Courts in other jurisdictions have approved a plaintiff’s Rule 41(a)(2) motion to
voluntarily dismiss the case without prejudice when joinder of a party would destroy diversity
jurisdiction. In Conafay v. Wyeth Laboratories, 841 F.2d 417 (D.C. Cir. 1988), the plaintiff
requested permission to voluntarily dismiss the complaint without prejudice after determining
that joinder of a party would destroy diversity jurisdiction. The appellate court held that, under
the circumstances, the district court abused its discretion when it denied the motion for voluntary
dismissal. The appellate court cited to the following circumstances supporting its decision: the
case was less than nine months old, no extensive discovery or trial preparations had taken place,
no dispositive motions had been filed, and, most importantly, there would be “no cognizable
prejudice to [the defendant] from voluntarily dismissing this case.” Id. at 421.
In Der v. E.I. DuPont De Nemours & Company, 142 F.R.D. 344 (M.D. Fla. 1991), the
court granted the plaintiff’s motion to dismiss without prejudice so that plaintiffs had an
opportunity to join a non-diverse distributor and maintain their products liability action in state
court. The court rejected the defendant’s argument that the voluntary dismissal was nothing
more than an attempt to defeat diversity jurisdiction. Noting that no evidence supported that
conclusion, the court commented that even if dismissal would give the plaintiffs a “tactical
advantage,” such an advantage “is no bar to a voluntary dismissal.” Id. at 346. In Der, the
parties had not conducted discovery or even answered the court’s standard interrogatories, and no
trial date was set. Id. What limited costs the defendants had expended would be recouped when,
and if, the plaintiffs re-filed, because the court imposed a requirement that plaintiffs “make use of
any discovery and legal arguments it could have presented to this court.” Id. at 346.
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In Johnson v. Pharmacia & Upjohn Company, 192 F.R.D. 226 (W.D. Mich. 1999), the
case had been removed to federal court on the basis of diversity jurisdiction. The court granted a
Rule 41(a)(2) motion to dismiss even after it previously denied the plaintiff’s motion to amend
the complaint and remand to state court based on its conclusion that the plaintiff “sought to
amend solely for the purpose of destroying diversity[.]” Id. at 227. The court agreed with the
defendant “that the obvious reason [plaintiff] seeks a voluntary dismissal is to defeat federal
jurisdiction” created by the defendant’s removal from state court. Nevertheless, the court agreed
with “the overwhelming majority of cases that have considered the issue [and] have held that the
fact that a voluntary dismissal will destroy federal jurisdiction is insufficient to constitute
prejudice to a defendant.” Id. at 228 (citing, among other cases, Der, 142 F.R.D. at 346).
“[L]oss of a chosen forum does not amount to ‘plain legal prejudice.’” Id. at 229.3
As the courts in Conafay, Der, and Johnson did, this court finds that Ms. Varney’s request
for dismissal at this early stage of the case is appropriate.
Rule 41(a)(2) allows dismissal “on terms that the court considers proper.” To that end,
the court may also consider whether “curative conditions” are necessary to insure substantial
justice to both parties. Brown v. Baeke, 413 F.3d 1121, 1123-24 (10th Cir. 2005). Here, it
appears that the loss to Target is relatively minimal. The majority of what has occurred in this
litigation (essentially discovery) will transfer well to any state court litigation Ms. Varney files.
And although Target incurred removal fees, it voluntarily chose to remove the case and,
3

The Johnson court, exercising its discretion, awarded fees to the defendant, including
fees incurred to remove the case, to respond to a motion to amend and join parties, and to
respond to the motion dismiss. But this court does not find such an award necessary. Unlike the
circumstances in Johnson, nothing in the record here indicates that Ms. Varney filed her motion
purely to avoid federal court jurisdiction.
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accordingly, to incur those fees. The court will not transfer that cost to Ms. Varney.
For the foregoing reasons, Ms. Varney’s Motion to Dismiss Without Prejudice (Docket
No. 17) is GRANTED.
SO ORDERED this 11th day of April, 2016.
BY THE COURT:

TENA CAMPBELL
U.S. District Court Judge

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