United States District Court, D. Kansas
MEMORANDUM & ORDER
W. Lungstrum, United States District Judge
February 2017, plaintiff filed a petition against defendant
in state court asserting claims arising out of his employment
with defendant. Thereafter, defendant removed the case to
federal court. This matter is presently before the court on
plaintiff's motion to dismiss his case without prejudice
pursuant to Federal Rule of Civil Procedure 41(a)(2). As will
be explained, the motion is granted.
Rule of Civil Procedure 41(a)(2) permits a district court to
dismiss an action on plaintiff's request on terms that
the court considers proper. Unless the order states
otherwise, a dismissal under Rule 41(a)(2) is without
prejudice. See Fed. R. Cv. P. 41(a)(2). “The
rule is designed primarily to prevent voluntary dismissals
which unfairly affect the other side, and to permit the
imposition of curative conditions.” Brown v.
Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005) (quoting
Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d
354, 357 (10th Cir. 1996)). Absent legal prejudice to the
defendant, the court normally grants such a dismissal.
Id. (citing Ohlander v. Larson, 114 F.3d
1531, 1537 (10th Cir. 1997)). As noted by the Tenth Circuit,
[p]rejudice does not arise simply because a second action has
been or may be filed against the defendant, “which is
often the whole point in dismissing a case without
prejudice.” Rather, prejudice is a function of other,
practical factors including: “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.” These factors are neither
exhaustive nor conclusive; the court should be sensitive to
other considerations unique to the circumstances of each
case. And “[i]n reaching its conclusion, the district
court should endeavor to insure substantial justice is
accorded to both parties, and therefore the court must
consider the equities not only facing the defendant, but also
those facing the plaintiff.”
Id. at 1124 (quotations and citations omitted).
motion to dismiss, plaintiff contends that each of the
pertinent factors weigh in favor of dismissal without
prejudice. The court agrees and concludes that defendant will
suffer no legal prejudice if this case is dismissed subject
to certain curative conditions. The record reveals that this
case is in the early stages of discovery. No depositions have
been taken and no dispositive motions have been filed.
Indeed, defendant does not contend that it has incurred any
expense “preparing for trial.” While the parties
have exchanged discovery responses and the production of
documents, plaintiff agrees that the parties may utilize the
evidence discovered in this case in any subsequent action.
The court, then, will order that any discovery exchanged in
this action be used in any subsequent action. Thus, the court
rejects defendant's argument that it will suffer
prejudice in light of the expenses it has incurred if the
case is dismissed.
plaintiff's explanation for seeking a dismissal, he
asserts that he intends to pursue his claims through
arbitration pursuant to the collective bargaining agreement
between defendant and his union and suggests that defendant
will not arbitrate plaintiff's grievance while this
litigation is pending-an assertion that defendant does not
deny. Defendant asserts that plaintiff is, in fact,
“doing nothing more than forum shopping.” The
court, however, cannot draw this inference based on the
record before it and is not persuaded that plaintiff's
proffered explanation warrants denial of the motion.
Similarly, the court, on the record before it, cannot
conclude that plaintiff “excessively delayed and lacked
diligence in filing his motion.” The delay described by
defendant is not plaintiff's delay in filing the motion
(which was filed 6 months after he filed his state court
petition and in the early stages of discovery) but
plaintiff's “two year” delay in filing his
petition after the termination of his employment. Defendant
complains that plaintiff, prior to filing his lawsuit,
delayed his pursuit of arbitration and his pursuit of
workers' compensation benefits. Defendant, however,
directs the court to no authority that this type of delay
should factor into an analysis of whether a Rule 41(a)(2)
dismissal is appropriate. Moreover, plaintiff contends that
defendant played a significant part in the delay in
scheduling an arbitration of plaintiff's claims.
foregoing reasons, the court concludes that defendant will
suffer no legal prejudice if this case is dismissed.
Defendant, then, contends that plaintiff should be required
to pay any duplicative expenses incurred by defendant should
plaintiff file a subsequent lawsuit. But defendant should
incur few, if any, duplicative expenses in light of the
court's order that all discovery exchanged in this case
be used in any subsequent case. The one exception is the cost
incurred by defendant in removing this case to federal court.
If plaintiff refiles a subsequent action in state court that
is subsequently and appropriately removed by defendant, then
plaintiff shall be required to pay the cost of removal,
including reasonable attorney fees. Defendant also contends
that plaintiff should be precluded from claiming any element
of damage that accrued during the period of dismissal.
Defendant cites no authority supporting this suggestion, and
the court rejects it.
IS THEREFORE ORDERED BY THE COURT THAT
plaintiff's motion to dismiss without prejudice (doc. 19)
is granted subject to the condition that any
discovery conducted in this action be used in any subsequent
action and plaintiff shall be responsible for the cost of
removal, including reasonable attorney fees, if he files a
subsequent action in state court that is appropriately
removed by defendant.
IS SO ORDERED.
 Defendant highlights that it incurred
considerable expense participating in two mediation sessions.
Defendant, however, does not suggest that such efforts are
rendered useless by plaintiff's dismissal and it may be
that such efforts will assist the parties as they evaluate
their claims and defenses going forward. Nothing about the
fact that the parties engaged in mediation, ...