Wendt v. Union Pacific Railroad Company et al

Filing 46

ORDER signed by Judge J.P. Stadtmueller on 11/15/2017: GRANTING 42 Plaintiff's Motion to Voluntarily Dismiss Without Prejudice; DENYING as moot 35 Defendant Union Pacific Railroad Company's Motion for Summary Judgment; DENYING as moot 38 Defendant Wisconsin Central Ltd's Motion for Summary Judgment; and DISMISSING action without prejudice. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VICTORIA CAVADIAS, Individually and
as the Personal Representative of the Estate
of Larry Wendt,
Plaintiff,
Case No. 17-CV-71-JPS

v.
UNION PACIFIC RAILROAD
COMPANY, SOO LINE RAILROAD
COMPANY, CANADIAN PACIFIC
RAILWAY, and WISCONSIN
CENTRAL LTD,

ORDER

Defendants.
On September 13, 2017, after Defendants Union Pacific Railroad
Company (“Union Pacific”) and Wisconsin Central Limited (“Wisconsin
Central”) had each filed a motion for summary judgment, see (Docket #35
and #38), Plaintiff filed a motion for voluntary dismissal of this entire action
without prejudice. (Docket #42). She indicates that because she has not yet
been appointed executrix to the estate of the original plaintiff, Larry Wendt
(“Wendt”), she does not have standing to prosecute this case. (Docket #43
at 2).
All Defendants except for Wisconsin Central consent to dismissal
without prejudice. (Docket #42 at 1-2). Wisconsin Central filed an
opposition to Plaintiff’s motion, stating that it prefers dismissal with
prejudice “because [Wisconsin Central] is not a proper defendant.” (Docket
#44 at 1). Wisconsin’s Central argues that it has expended time and

resources defending itself in this litigation and does not want to start anew
defending itself in a later-filed lawsuit on the same claim, which it believes
is meritless. Id. at 1-3.
Federal Rule of Civil Procedure 41(a)(2) provides that, after service
of an answer or 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.” Fed. R. Civ. P. 41(a)(2). The district court enjoys
wide discretion in considering Rule 41 motions, and the plaintiff bears the
burden of persuasion. See Tolle v. Carroll Touch, Inc., 23 F.3d 174, 177 (7th
Cir. 1994) (citing F.D.I.C. v. Knostman, 966 F.2d 1133, 1142 (7th Cir. 1992)).
The Seventh Circuit instructs that courts should not grant dismissal
without prejudice if the defendant would suffer “plain legal prejudice” as
a result. Kovalic v. DEC Int'l, Inc., 855 F.2d 471, 473 (7th Cir. 1988). The Court
considers four factors in determining whether a defendant would suffer
plain legal prejudice: (1) the defendant’s effort and expense of preparation
for trial; (2) whether there has been excessive delay and lack of diligence on
the part of the plaintiff in prosecuting the action, (3) the sufficiency of the
plaintiff’s explanation for the need to take a dismissal, and (4) whether the
defendant has filed a motion for summary judgment. Knostman, 966 F.2d at
1142. The Court need not resolve every factor in favor of the moving party
to dismiss without prejudice. Kovalic, 855 F.2d at 471.
The second and third factors weigh in Plaintiff’s favor. As to the
second factor, Plaintiff has not delayed excessively in bringing her motion
to dismiss. This case was filed by the now-deceased former plaintiff, Wendt,
on January 18, 2017. Wendt died on February 12, 2017, and on April 11,
2017, Plaintiff filed an amended complaint, taking Wendt’s position as the
plaintiff. See (Docket #20 at 1 and #24). Plaintiff’s motion to voluntarily
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dismiss was filed five months later, on September 13, 2017, shortly after two
Defendants filed motions for summary judgment. (Docket #42). While
Defendants (and the Court) might have preferred that Plaintiff moved to
dismiss before any dispositive motions were filed, the Court cannot say that
a period of five months between the time when Plaintiff was substituted
into the case and when she moved to dismiss because she lacks standing,
during which time Plaintiff mistakenly believed she did have proper
standing, see (Docket #42 at 2), is excessive.
As to the third factor, Plaintiff’s reason for dismissal, that she does
not have standing to prosecute this action at this time, is sufficient; in fact,
none of the Defendants contest Plaintiff’s reason for dismissal. Without a
proper plaintiff, the case cannot proceed. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992) (Standing is an “indispensable part of the plaintiff’s case.”).
The first and fourth factors present a closer question, but ultimately
do not preclude dismissal without prejudice. Wisconsin Central may well
have expended considerable time and resources compiling its motion for
summary judgment, but the Court has no way to measure that expenditure
because Wisconsin Central has not apprised the Court of its efforts. Further,
much of the effort and expense Wisconsin Central used to compile its
summary judgment motion could likely be directed toward another similar
motion in a subsequent case, should Plaintiff choose to refile.
Ultimately, Wisconsin Central’s argument for dismissal with
prejudice centers on its belief that Plaintiff cannot prove a claim against it
under the Federal Employers’ Liability Act (“FELA”); Wisconsin Central
does not want to litigate that issue in a subsequent case. (Docket #44 at 1-2).
But the prospect of a second lawsuit on the same facts and claim does not
constitute plain legal prejudice sufficient to require denial of a plaintiff’s
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motion to dismiss without prejudice. Quad/Graphics, Inc. v. Fass, 724 F.2d
1230, 1233 (7th Cir. 1983). Wisconsin Central’s liability under FELA is an
issue for a later case, should Plaintiff decide to bring one.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to voluntarily dismiss
without prejudice (Docket #42) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendant Union Pacific Railroad
Company’s motion for summary judgment (Docket #35) be and the same is
hereby DENIED as moot;
IT IS FURTHER ORDERED that Defendant Wisconsin Central
Limited’s motion for summary judgment (Docket #38) be and the same is
hereby DENIED as moot; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED without prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 15th day of November, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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