Fried v. Town of Vienna

Filing 11

MEMORANDUM OPINION re: 5 MOTION to Transfer Case by Town of Vienna. (See Memorandum Opinion). Signed by District Judge James C. Cacheris on 11/4/11. (nhall)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

STEPHANIE M. FRIED

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Plaintiff,
v.
TOWN OF VIENNA,
Defendant.

1:11cv992 (JCC/TRJ)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on Defendant, the Town
of Vienna’s, Motion to Transfer the Case (the Motion).
For the following reasons, the Court will deny the
Motion.
I.

Background

Plaintiff Stephanie M. Fried brings this case against
the Town of Vienna based on her former employment as a Vienna
police officer.

(Compl. [Dkt.1 ] ¶ 1.)

Her complaint contains

two claims under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e, et seq.

(Compl. ¶ 1.)

One claim

relates to a hostile work environment and the other relates to
retaliation in the workplace.

(Compl. ¶ 1.)

Plaintiff originally filed her Complaint in this Court
on September 8, 2011.

The case was assigned to the Honorable

Judge Claude M. Hilton.

On September 9, 2011, Plaintiff filed a
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notice of voluntary dismissal under Fed. R. Civ. P.
41(a)(1)(A)(i).

On September 16, 2011, Plaintiff refiled the

same Complaint and it was assigned here.
On October 11, 2011, Defendant filed a Motion to
Transfer Case (the Motion).

[Dkt. 5.]

Defendant requests that

this Court transfer the case back to Judge Hilton because
Plaintiff’s dismissal and refiling amounts to “judge-shopping.”
(D. Mem. [Dkt. 6] at 2.)

On October 21, 2011, Plaintiff filed

an Opposition to Motion to Transfer.

[Dkt. 9.]

Defendant’s motion is now before the Court.
II.

Analysis

Defendant argues that “there is no explanation for
plaintiff’s voluntarily (sic) dismissal and refiling of the
exact same case except for judge-shopping.”

(D. Mem. at 3.)

Based on that assertion, Defendant argues that this Court should
transfer the case to “preserve judicial authority and to
preserve control of its docket.”

(D. Mem. at 2 (quoting Span-

Eng Assocs. v. Weidner, 771 F.2d 464, 470 (10th Cir. 1985)).
Plaintiff opposes the Motion “to make clear that
‘judge-shopping’ was not at all at play here, nor something the
undersigned firm would contemplate.”

(P. Opp. [Dkt. 9.] at 2.)

Plaintiff states that “[t]he original filing was dismissed and
re-filed due to an attorney-client issue that cannot ethically
be disclosed, and because plaintiff was up against an [Equal

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Employment Opportunity Commission September 21] deadline for
deciding whether or not to re-file or lose her chance of
pursuing the matter.”

(P. Opp. at 2; see Right to Sue Notice

attached to Dkt. 9.)
It is well recognized that judge-shopping is
disfavored.

See Learning Network v. Discovery Commc’ns, Inc.,

11 F. App’x 297, 301 (4th Cir. 2001); Gen. Elec. Co. v. Merhige,
No. 72-2237, 1972 U.S. App. LEXIS 6632, at *3 (4th Cir. Nov. 20,
1972) (denying application for mandamus to compel transfer of
action from Eastern to Western District of Virginia where “it
seem[ed] clear that the plaintiffs have engaged in judgeshopping”).

And, in the specific context of motions to

disqualify, tactics by litigants which are designed to engineer
a situation requiring recusal are discouraged.

See United

States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990) (“Parties
cannot be allowed to create the basis for recusal by their own
deliberate actions. To hold otherwise would encourage
inappropriate ‘judge shopping.’”).

See also Etlin v. Unknown,

No. 1:09cv886, 2009 U.S. Dist. LEXIS 104669, at *12-13 (E.D. Va.
Nov. 9, 2009) (finding that the plaintiff’s filing of a motion
to disqualify the court from presiding, along with a
“provisional” motion to allow her to withdraw the petition if
disqualification is denied, was a transparent attempt to judgeshop).

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Fed. R. Civ. P. 41(a)(1), however, permits a plaintiff
to dismiss an action without prejudice by filing a notice of
dismissal before the opposing party serves either an answer or a
motion for summary judgment.

The Fourth Circuit has held that

“[a] voluntary dismissal under Rule 41(a)(1)(i) ‘is available as
a matter of unconditional right and is self-executing, i.e., it
is effective at the moment the notice is filed with the clerk
and no judicial approval is required.’”

United States v.

Matthews, 395 F.3d 477, 480 (4th Cir. 2005)(quoting Marex
Titanic, Inc. v. Wrecked & Abandoned Vessel, 2 F.3d 544, 546
(4th Cir. 1993)).
Here Plaintiff properly exercised her right to
voluntarily dismiss the action under Fed. R. Civ. P. 41(a)(1).
One instance of an action that complied with the federal rule
for dismissal cannot, on its own, amount to judge-shopping.
Thus, this Court declines to transfer the case.
III. Conclusion
For these reasons, the Court will deny Defendant’s
Motion.
An appropriate Order will issue.

November 4, 2011
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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