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Ledford v. Kinseth Hospitality Companies

United States District Court, D. Kansas

June 13, 2017



          GWYNNE E. BIRZER United States Magistrate Judge.

         This matter is before the Court on Plaintiff's Motion to Voluntarily Dismiss without Prejudice (ECF No. 72); Plaintiff's Motion to Stay Discovery pending decision on the dismissal (ECF No. 74); and Defendant's recently-filed Motion for Summary Judgment (ECF No. 80). On May 19, 2017, the Court convened a telephone hearing to address the pending Motion to Dismiss (Motion, ECF No. 72; Order, ECF No. 83). After consideration of both the arguments of counsel and the parties' briefing, Plaintiff's Motion to Dismiss (ECF No. 72) is DENIED but the case shall be STAYED; Plaintiff's Motion to Stay Discovery (ECF No. 74) is found MOOT; and Defendant's Motion for Summary Judgment (ECF No. 80) is DENIED for the reasons outlined below.

         I. Background

         This case arose after Plaintiff, a resident of Missouri, was injured on or about April 28, 2013 while renting a handicap-accessible room at the Super 8 hotel in Hays, Kansas. As a polio survivor, Plaintiff relies a great deal on her right arm as her primary functioning limb. During her stay at the Super 8, while taking a shower, the water from the shower became scalding hot, which caused her to suddenly jerk herself from the water and resulted in injury to her dominant right shoulder and left elbow. Although Plaintiff filed this case two years ago, its progress has been sluggish, for a number of reasons.

         Representing herself pro se, Plaintiff initially filed suit in the District Court of Ellis County, Kansas, and former Defendants Liberty Mutual Fire Insurance Company, Supertel Limited Partnership, and Super 8 Hays[1] removed the case to the federal court in May 2015. This case, characterized by former defendants as a premises liability case, [2] also contains undertones of accommodation issues under the enforcement provision of the Americans with Disabilities Act (“ADA”), found in 42 U.S.C. §12188(a), although the extent of any ADA claims are unclear.[3] Plaintiff seeks compensation for her injuries, as well as costs of equipment, such as a power wheelchair, and costs of modifications to her home resulting from her increased use of the wheelchair following this injury.

         For the first year of the litigation, Plaintiff's efforts to assert her claims were frustrated by the combined defendants' “not me” defense. The first-named defendants were dismissed in part because those defendants successfully asserted they were not viable legal entities and/or properly-named defendants (Mem. and Order, ECF No. 17, Sept. 23, 2015). Despite the dismissal of all named defendants, Plaintiff was afforded the chance to file an amended complaint against proper parties (Id.). Plaintiff, continuing pro se, filed an Amended Complaint (ECF No. 19), Second Amended Complaint (ECF No. 24), and Corrected Second Amended Complaint (ECF No. 32) against new defendants, E & P Financing Limited Partnership, Supertel Hospitality, Inc., Supertel Hospitality Management, Inc., and Kinseth Hospitality Companies. Despite Plaintiff's attempts, Defendants continued to claim she named the wrong entities, and all except Kinseth sought dismissal, in part, on that basis.[4]

         In May 2016, a Scheduling Order was entered (ECF No. 46) and this Court provided parameters for Plaintiff to consider if she wished to seek appointed counsel (ECF No. 47). Although Plaintiff initially filed a motion for appointment of counsel (ECF No. 51), before the Court could consider her request, her currently-retained counsel entered his appearance on June 27, 2016. Chief District Judge J. Thomas Marten granted the pending motions to dismiss (ECF. No. 49) and the case was terminated, but after a request for reconsideration by Plaintiff, on August 25, 2016, the Court clarified its dismissal of all named defendants except Kinseth (ECF No. 57) and reopened the case against the sole defendant. By October 3, 2016, then-17 months after its filing-a revised schedule was established (ECF No. 61) and the winding road this case had followed finally seemed to straighten.

         In the months following the revised scheduling order, the case appeared to be on a standard trajectory. The parties conducted written discovery and jointly sought various revisions to the schedule. Fact discovery was set to close on May 31, 2017, with trial scheduled for February 2018. Then, on April 19, 2017, Plaintiff filed her motion to voluntarily dismiss her case (ECF No. 72) and to stay discovery pending the court's decision on dismissal (ECF No. 74). The Court scheduled a hearing on the pending motion to dismiss, and one day prior to the hearing, Defendant filed its motion for summary judgment (ECF No. 80). All motions are currently before the Court, and each is addressed in turn.

         II. Plaintiff's Motion to Voluntarily Dismiss (ECF No. 72) and Plaintiff's Motion to Stay (ECF No. 74)

         The Court will first address Plaintiff's request to voluntarily dismiss her case, without prejudice to later refiling, under Fed.R.Civ.P. 41(a)(2), and her request to stay all discovery and deadlines pending a decision on dismissal.

         A. Legal Standards for Dismissal

         Rule 41(a) governs a request for voluntary dismissal after an opposing party files an answer or motion for summary judgment. More specifically, Rule 41(a)(2) provides, “an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” “A dismissal without prejudice under Rule 41(a)(2) depends on the district court's discretion.”[5] “Courts generally allow dismissal without prejudice unless the defendant will suffer some plain legal prejudice.”[6]

         “Plain legal prejudice” may be defined as “prejudice to some legal interest, some legal claim, [or] some legal argument.”[7] The court considers “whether the opposing party will suffer prejudice in light of the valid interests of the parties.”[8] But “neither the mere prospect of a second lawsuit against the defendant nor a tactical advantage to the plaintiff amounts to legal prejudice.”[9]

         Courts in this district and the Tenth Circuit have generally examined the following non-exhaustive list of factors, in various combinations, when determining whether a defendant would suffer legal prejudice:

1) the defendants' efforts and funds expended towards preparing for trial;
2) the plaintiff's undue delay or lack of diligence in prosecuting the action;
3) the adequacy of the plaintiff's explanation for needing to dismiss;
4) the plaintiff's diligence in moving to dismiss;
5) the present stage of litigation; and
6) duplicative expenses involved in a likely second suit.[10]

         “These factors are neither exhaustive nor conclusive; the court should be sensitive to other considerations unique to the circumstances of each case.”[11] “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.”[12] The court should also consider any other relevant factors in order to “insure substantial justice is accorded to both parties.”[13]

         If, after consideration of the above factors, the court determines dismissal is appropriate, it has discretion to order dismissal “upon such terms and conditions as the court deems proper, ” and the purpose of imposing conditions is to “alleviate any prejudice a defendant might otherwise suffer upon refiling of an action.”[14] But the court should only impose sanctions sufficient to actually alleviate harm to the defendant.[15]

         Typical terms and conditions “include at least the payment of taxable costs, but they also may include the payment of some or all of the other expenses and/or attorneys' fees or a requirement on the use of discovery or about the refiling of certain claims.”[16] After an order granting dismissal and imposing conditions is entered, the “moving plaintiff must be given a reasonable opportunity to withdraw his motion if he finds those conditions unacceptable or too onerous.”[17] “The rule is designed primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.”[18] “Absent ‘legal prejudice' to the defendant, the district court normally should grant such a dismissal.”[19]

         B. Discussion

         Plaintiff now seeks to voluntarily dismiss her claims without prejudice to refiling. She indicates she has “continued to receive treatment for injuries to her right shoulder” resulting from the incident (ECF No. 73, at 3). Plaintiff's counsel reports her physicians did not initially agree on a proper course of treatment, and it took a considerable length of time to arrive at a proper plan, especially given the complications of her medical history. Due to her ongoing treatment, and expected upcoming surgery, she contends her damages in the case have been and remain a moving target. Plaintiff contends dismissal would permit her to properly ascertain her damages, which would benefit both parties to this action.

         Defendant opposes the dismissal without prejudice, and contends Plaintiff seeks dismissal because she missed her February 17, 2017 deadline[20] to designate expert witnesses, failed to seek an extension, and now seeks to dismiss in an effort to get “another bite at the apple.” Defendant argues Plaintiff has done little to pursue the case, and dismissal with the potential of refiling would be prejudicial. If Plaintiff is allowed to refile her case, Defendant would then be required to defend the case with experts, which would entail additional depositions and potential rebuttal experts (ECF No. 76, at 4).

         To determine whether dismissal is appropriate, the Court reviews those factors set forth above to determine whether legal prejudice would result from dismissal.

         1. Defendants' efforts and funds expended towards preparing for trial.

         The Court first examines Defendant's effort and expense in preparing for trial. Defendant argues it has incurred substantial attorney's fees in defending this action. Although Defendant claims it has significantly prepared for trial, the majority of its filings, to date, have been those opposing Plaintiff's motions, including her appointment of counsel, and even her request to consider Defendant's own mistaken dismissal, which was later clarified by the Court. (Order, ECF No. 57). Defendant certainly has the right to file oppositions, but such work is distinguished from actual trial preparation.[21] Additionally, Defendant filed its recent motion for summary judgment (see discussion infra Part III below) after Plaintiff's motion to dismiss; therefore the preparation of the summary judgment motion will not be taken into consideration of the earlier request for dismissal.

         Although Defendant has undoubtedly made some progress toward trial, those expenses it illustrates, such as locating documents in a storage unit, relate primarily to written discovery. Because the discovery may be utilized in a second lawsuit, the effort and costs expended on the work does not weigh against Plaintiff's dismissal without prejudice.[22]Because Defendant's efforts, to date, have been either non-trial preparation or discovery usable in a later lawsuit, this factor does not weigh against dismissal.

         2.Plaintiff's undue delay or lack of diligence in prosecuting the action, and diligence in seeking dismissal.

         The Court now considers, in conjunction, factors no. 2 and 4, both regarding Plaintiff's general diligence in prosecution of her case and diligence in requesting dismissal. Defendant argues Plaintiff has not diligently pursued her case. Although this case has been on file for two years, the Court is mindful of its initial filing by Plaintiff pro se. Acting pro se, she complied with all Court orders, and after resolution of dispositive motions, she eventually retained counsel in August 2016. It has only been since the entry of a scheduling order in October 2016 that it appears written discovery has proceeded, so allowing Plaintiff some latitude for the time she appeared pro se, [23] it does not appear she lacked diligence in prosecuting her case to that point. However, two issues do cause some concern: her failure to take any depositions or pursue other routes of discovery, aside from written discovery; and her failure to designate experts by the February 17, 2017 deadline.

         With regard to the taking of depositions or other discovery, the Court does not second-guess Plaintiff's strategy, but recognizes the difficulties arising from the imprecise nature of her damages. During the May 19 telephone conference to discuss the pending motions, Plaintiff's counsel explained-and defense counsel acknowledged-as early as January 2017, he was discussing the prospect of dismissal with opposing counsel. Given Plaintiff's ongoing medical concerns, reported disagreement between her treating physicians, and the resulting difficulty identifying her damages, as well as counsel's communication with defense counsel, the Court finds no bad faith in Plaintiff's failure to expend time and costs in extensive discovery, if she were contemplating dismissal.

         With regard to designation of experts, during the hearing, Plaintiff disclosed that her testifying medical experts are expected to be her treating physicians. Plaintiff's reasons for not timely designating those physicians as experts under Rule 26(a) appear twofold: 1) first, identification of necessary testimony remains unknown, due to her ongoing and future treatments and potential dismissal; and 2) counsel believed it unnecessary to formally designate her treating physicians, because they will testify primarily as fact witnesses. Defendant disagrees with Plaintiff's characterization of her treating physicians as fact witnesses, and indicated it would, at some later time, ask the Court to prohibit those physicians from offering expert opinion.

         The characterization of a party's treating physicians as either retained or non-retained expert witnesses, or as some hybrid of the two, has been the topic of some discussion.[24] Before 2010, disclosure requirements in Rule 26 addressed only one category of witnesses: “those retained or specially employed to provide expert testimony” who were required to provide written reports.[25] But the 2010 amendment of Rule 26 clarified a distinction between “reporting” and “non-reporting” experts. Since the amendment, a physician may provide an expert report under Fed.R.Civ.P. 26(a)(2)(B), as a retained witness, or may simply be named and provide the necessary summaries under Rule 26(a)(2)(C).[26] The Comment to the 2010 amendment to Rule 26 (a)(2)(C) explains,

A witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact witness and also provide expert testimony under Evidence Rule 702, 703, or 705. Frequent examples include physicians or other health care professionals and employees of a party who do not regularly provide expert testimony. Parties must identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure required under Rule 26(a)(2)(C).[27]

         Regardless of whether the physician must provide a report, however, this Court can find no authority which indicates the physician should not be designated as an expert. For example, a recent decision from this District notes the distinction between retained and non-retained treating physicians, but explains if the physician's “proposed testimony includes information solely about his or her treatment of the patient, the treating physician may be confusion about the role and proper scope of treating physicians' testimony at trial”); see also “Identity and report of treating physician, ” 10 Fed. Proc., L.Ed. § 26:50 (discussing how some courts require treating physicians to be designated as expert witnesses; while other courts permit a treating physician to be a “hybrid witness”-a fact witness for some purposes and an expert for others); see also Andrea Mahady Price and Kristin L. Beckman, ‘Hybrid Witnesses' and Federal Rule of Civil Procedure 26, ABA Section of Litigation (Nov. 13, 2012), designated under Rule 26(a)(2)(A) and need not provide a formal report.”[28] It is clear the treating physician may be exempt from the report requirement, but not so clear whether he or she is exempt from designation itself under Rule 26(a)(2)(A).

         But even if Plaintiff were required to designate her treating physicians as experts, her failure to do so would lead to a prohibition on her use of experts only if her failure to timely designate was neither “substantially justified” nor “harmless.”[29] The exclusion of expert testimony is a drastic sanction, and without a showing of prejudice or surprise to ...

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