Robinson v. Greater Park City Company
MEMORANDUM DECISION and ORDER granting 30 Motion to Dismiss Without Prejudice. Signed by Judge Ted Stewart on 7/3/2014. (blh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CHRISTOPHER L. ROBINSON,
MEMORANDUM DECISION AND
ORDER DISMISSING CASE WITHOUT
GREATER PARK CITY COMPANY d.b.a.
PARK CITY MOUNTAIN RESORT,
JOHN DOES I-V,
Case No. 2:12-CV-485 TS
District Judge Ted Stewart
This matter is before the Court on Plaintiff’s Renewed Motion to Continue the Trial or, in
the Alternative, Plaintiff’s Request for Dismissal under Federal Rule of Civil Procedure 41(a)(2).
For the reasons discussed below, the Court will dismiss this matter without prejudice.
Plaintiff filed his Complaint in May 2012. On December 10, 2012, the Court entered a
Scheduling Order setting this matter for trial on July 7, 2014. After the dispositive motion
deadline had passed, the Court issued an Order to Show Cause on March 31, 2014. The Court
did so because neither party had filed anything with the Court since the entry of the Scheduling
Order. Plaintiff responded to the Order to Show Cause, stating that “Plaintiff fully intends to
continue to proceed in accordance with the remaining time frames, dates and deadlines set forth
in the Scheduling Order” and that “Plaintiff plans to keep the trial dates set forth in the
scheduling order and will continue to prepare for such trial (and other pretrial proceedings).”1
Docket No. 16, at 2.
On June 18, 2014, Plaintiff filed a motion to continue the trial date. Plaintiff explained
that he had a job offer in Florida that would make him unavailable for the trial. The Court
denied Plaintiff’s Motion. The Court pointed out that the Scheduling Order was entered in
December 2012 and that Plaintiff was aware of this employment opportunity as early as January
2014, yet he waited until just over two weeks before trial to request a continuance.
The Court conducted a Final Pretrial Conference on June 23, 2014. At that Final Pretrial
Conference, Plaintiff’s counsel informed the Court that Plaintiff would not attend the trial,
though counsel was making efforts to convince Plaintiff to appear. Also at the Final Pretrial
Conference, the Court established July 1, 2014, as the deadline for the parties to file various trial
documents, including a trial brief, proposed jury instructions, and a proposed verdict form.
On July 1, 2014, Plaintiff did not file the documents required by the Court. Rather,
Plaintiff filed the instant Motion to Continue. Plaintiff requests a continuance for three reasons.
First, Plaintiff informed his counsel that Plaintiff’s father suffered from a heart attack on June 27,
2014, and that Plaintiff must remain in Florida to attend to his father’s medical needs, in addition
to Plaintiff’s work responsibilities that prompted his initial motion to continue. Second, counsel
indicated that two of the four witnesses that Plaintiff had subpoenaed had unavoidable conflicts
on the dates of trial. Third, Plaintiff represented that the parties had engaged in substantive
negotiations, but have not been able to resolve the case. Alternatively, Plaintiff requests
dismissal of this action, but requests that any dismissal be without prejudice.
Defendant opposes Plaintiff’s Motion. As to Plaintiff’s first argument, Defendant argues
that there is insufficient evidence from which the Court can form an opinion as to the
unavailability of Plaintiff. On Plaintiff’ second argument, Defendant points out that the trial date
has been set for a substantial period of time. Thus, arrangements could have been made for these
witnesses well in advance of the currently scheduled trial date. Finally, Defendant asserts that
there have been no negotiations between the parties since the Final Pretrial Conference.
Defendant further argues that dismissal with prejudice is the appropriate remedy.
The Court considers the following factors when considering a motion to continue trial:
the diligence of the party requesting the continuance; the likelihood that the
continuance, if granted, would accomplish the purpose underlying the party’s
expressed need for the continuance; the inconvenience to the opposing party, its
witnesses, and the court resulting from the continuance; the need asserted for the
continuance and the harm that [the moving party] might suffer as a result of the
district court’s denial of the continuance.2
These factors are weighed according to the dictates of the case. “No single factor is
determinative and the weight given to any one may vary depending on the extent of the
appellant’s showing on the others.”3
Considering these factors, the Court finds that a continuance is not justified. First, the
Court finds that Plaintiff has not been diligent. The instant Motion is Plaintiff’s latest attempt to
delay the trial in this matter. The Court cannot condone such dilatory conduct.
Second, it is unclear whether granting the continuance would accomplish the purpose
underlying Plaintiff’s expressed need for the continuance. As Defendant points out, Plaintiff has
failed to provide the Court with sufficient information for the Court to make an informed
United States v. West, 828 F.2d 1468, 1470 (10th Cir. 1987); see also Rogers v. Andrus Transp.
Servs., 502 F.3d 1147, 1151 (10th Cir. 2007) (considering the same factors in a civil matter).
West, 828 F.2d at 1470.
decision. For instance, Plaintiff has failed to provide any information concerning the care he is
providing for his father or how long he may need to provide such care. Additionally, Plaintiff’s
failure to secure witnesses for trial is not an adequate basis to continue. Plaintiff has known of
this trial date for well over a year and has had ample opportunity to prepare his witnesses.
Accommodations for these witnesses could have, and should have, been made a long time ago.
Finally, Plaintiff requests additional time to conduct settlement negotiations. However,
Defendant represents that settlement negotiations are not currently ongoing.
Third, the Court finds that Defendant and the Court would be inconvenienced if a
continuance is granted. Defendant has spent significant time preparing for trial; efforts that
would likely need to be repeated if a continuance is granted. Further, the Court has begun trial
preparations, including reviewing Defendant’s submissions and sending out notices to potential
Finally, the Court notes that Plaintiff will likely suffer prejudice as a result of the Court’s
decision. However, that prejudice is largely of Plaintiff’s own making and will be ameliorated
by a dismissal without prejudice.
The Court next considers Plaintiff’s request that this matter be dismissed without
prejudice. Federal Rule of Civil Procedure 41(a)(2) provides that “an action may be dismissed at
the plaintiff’s request only by court order, on terms that the court considers proper.” Unless
otherwise stated, a dismissal under this rule is without prejudice.4 “When considering a motion
to dismiss without prejudice, ‘the important aspect is whether the opposing party will suffer
Fed. R. Civ. P. 41(a)(2).
prejudice in the light of the valid interests of the parties.’”5 “Absent ‘legal prejudice’ to the
defendant, the district court normally should grant such a dismissal.”6
The parameters of what constitutes “legal prejudice” are not entirely clear, but
relevant factors the district court should consider include: 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. Each factor need not be resolved in favor of the
moving party for dismissal to be appropriate, nor need each factor be resolved in
favor of the opposing party for denial of the motion to be proper.7
“The district court should endeavor to insure substantial justice is accorded to both
parties. A court, therefore, must consider the equities not only facing the defendant, but also
those facing the plaintiff; a court’s refusal to do so is a denial of a full and complete exercise of
Considering these factors, the Court finds that dismissal without prejudice is proper.
First, the Court notes that Defendant has expended effort and expense preparing for trial.
However, the Court also notes that Defendant has not fully complied with the Court’s Trial
Order. While Defendant did timely submit proposed voir dire, motions in limine, and jury
instructions, Defendant failed to file a trial brief, a proposed verdict form, or witness and exhibit
lists. Thus, while Defendant has expended some time and effort preparing for trial, it does not
appear that Defendant is fully ready to proceed to trial.
Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993) (quoting Barber v. Gen. Elec. Co., 648
F.2d 1272, 1275 (10th Cir. 1981)).
Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997) (quoting Andes v. Versant Corp.,
788 F.2d 1033, 1036 (4th Cir. 1986)).
Id. (citation omitted).
Id. (citation omitted).
Second, the Court finds that there has been delay and a lack of diligence on Plaintiff’s
part. Plaintiff waited until just before trial to request a continuance based on facts he knew of
well in advance. However, Plaintiff’s father’s heart attack was not something that could have
been anticipated. Additionally, this is the first trial setting in this case and the case itself has only
been pending for just over two years. Thus, this factor is largely neutral.
Third, the Court finds that Plaintiff has provided an adequate explanation for the need for
dismissal. While Defendant does raise valid concerns about the lack of evidentiary support for
Plaintiff’s request, the Court finds that Plaintiff has nonetheless provided an adequate
Finally, it cannot be denied that Plaintiff’s request comes late in these proceedings.
However, for substantially the same reasons stated, Plaintiff’s lack of diligence does not
necessitate a denial with prejudice.
Defendant expresses a legitimate concern that it would be unfair to dismiss this matter
without prejudice only to allow Plaintiff an opportunity to file this suit again. The Tenth Circuit
has stated that “[w]hen a plaintiff dismisses an action without prejudice, a district court may seek
to reimburse the defendant for his attorneys’ fees because he faces a risk that the plaintiff will
refile the suit and impose duplicative expenses upon him.”9 Defendant has not requested its
attorneys’ fees. Therefore, the Court will not impose them at this time, but may entertain such a
request by Defendant should Defendant file a properly supported motion.
AeroTech, Inc. v. Estes, 110 F.3d 1523, 1528 (10th Cir. 1997).
It is therefore
ORDERED that this matter is dismissed without prejudice. The Clerk of the Court is
directed to close this case forthwith.
DATED this 3rd day of July, 2014.
BY THE COURT:
United States District Judge
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