United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
matter is before the court on plaintiff KC Fabrick's
Notice of Voluntary Dismissal. Doc. 26. Plaintiff filed a
Complaint on March 12, 2019 against three sets of defendants:
(1) Acumen Assessments, LLC, Dr. Scott Stacy, Dr. Peter
Graham, Dr. Michael Seely, Dr. Thomas Janousek, and Carly
Stevenson (“the Acumen defendants”); (2) Forensic
Truth Analysis, LLC, and Kipp Low (“the Forensic Truth
defendants”); and (3) Dr. John Whipple. Doc. 1. On July
12, Dr. Whipple filed an Answer. Doc. 21. Later the same day,
plaintiff filed a Notice of Voluntary Dismissal without
prejudice. Doc. 26. Fed.R.Civ.P. 41(a)(1) allows a plaintiff
to dismiss his case voluntarily and unilaterally before an
opposing party serves an answer. But this rule does not apply
to plaintiff's Notice of Voluntary Dismissal because
plaintiff filed his Notice after defendant's Answer. So,
Judge O'Hara ordered defendants to file a response by
August 2, 2019, stating whether they objected to plaintiff
dismissing his case without prejudice. Doc. 34. No defendants
have objected, so the court now dismisses the case without
Acumen defendants filed a Response to plaintiff's Notice
on August 2, 2019. Doc. 40. The Acumen defendants state they
“do not object to the dismissal requested in
Plaintiff's Notice of Voluntary Dismissal.”
Id. at 1. The Forensic Truth defendants also filed a
Response on August 2, 2019. Doc. 41. The Forensic Truth
defendants that they “do not object to Plaintiff's
Voluntary Dismissal.” Id. At 1. Dr. Whipple
filed a Motion to Dismiss on July 31, 2019. Doc. 38. But Dr.
Whipple has not filed a response to Plaintiff's Notice
despite the court's orders directing him to do so. On
August 21, for the second time, the court ordered Dr. Whipple
to respond to its Order Regarding Notice of Voluntary
Dismissal (Doc. 34) within three days. Doc. 55. Dr. Whipple
did not respond. Thus, Dr. Whipple has waived any objection
to dismissal. See D. Kan.Rule 7.4(b) (explaining
that when a party fails to respond, “the court will
consider and decide [the matter] as . . . uncontested . . .
[o]rdinarily, the court will grant the motion without further
41(a)(2) provides that the court may allow a plaintiff to
dismiss an action voluntarily “on terms the court
considers proper.” Fed.R.Civ.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.” Phillips USA,
Inc. v. Allflex USA, Inc., 77 F.3d 354, 357 (10th Cir.
1996) (quotation omitted). So, “[a]bsent ‘legal
prejudice' to the defendant, the district court normally
should grant such a dismissal.” Ohlander v.
Larson, 114 F.3d 1531, 1537 (10th Cir. 1997) (first
citing Am. Nat'l Bank & Trust Co. of Sapulpa v.
Bic Corp., 931 F.2d 1411, 1412 (10th Cir. 1991); then
citing McCants v. Ford Motor Co., Inc., 781
F.2d 855, 856-57 (11th Cir. 1986)). “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.” Id. (citing Phillips USA,
Inc. v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir.
1996)). “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.” Id.
court must determine whether defendants will suffer
“legal prejudice” if the court dismisses the case
without prejudice. The court considers the defendants'
effort and expense in preparing for trial; excessive delay
and lack of diligence on the part of plaintiff; insufficient
explanation of the need for dismissal; and the present stage
of litigation. Plaintiff filed this lawsuit about six months
ago. Discovery has not begun. The case is in its early stages
and defendants have expended minimal effort and expense. The
pro se plaintiff filed his Notice of Voluntary Dismissal two
hours after Dr. Whipple filed his Answer. Parts of
plaintiff's Notice are hard to follow, but it expresses
concern about filing challenges and “sensitive
records.” Doc. 26. None of these reasons will impose
“legal prejudice” on defendants. And defendants
do not object. For all these reasons, the court concludes
that voluntary dismissal without prejudice is proper.
IS THEREFORE ORDERED BY THE COURT THAT
plaintiff's case is dismissed without prejudice.