United States District Court, D. Kansas
BAILEY BURCHETT, Individually as Administrator of the Estate of DAMIEN “CRAIG” BURCHETT and DALTON BURCHETT Plaintiffs,
TEAM INDUSTRIAL SERVICES, INC., et al., Defendants.
MEMORANDUM AND ORDER
Murguia, United States District Judge.
matter is before the court on plaintiffs' Motion to
Dismiss Pursuant to F.R.C.P. 41(A)(2). (Doc. 43.) Plaintiffs
ask the court to grant voluntary dismissal to prevent split
adjudications of liability between claims by decedent's
estate and alleged spouse on the same underlying wrongful
death theories. Only defendant Team Industrial Services, Inc.
(“TEAM”) opposes the motion.
a wrongful death action arising out of a June 3, 2018
incident at the Jeffrey Energy Center of Westar Energy.
Plaintiffs originally filed this action against defendant
TEAM in Texas state court on July 31, 2018. On August 1,
2018, defendant performed a pre-service removal from the
state forum to the United States District Court for the
Southern District of Texas. (Doc. 50-2, at 1.) On August 14,
2018, plaintiffs moved to remand their suit back to state
court, which the federal court denied on October 1, 2018.
(Id. at 2.) The next day, plaintiffs voluntarily
dismissed their action from the Texas federal forum.
re-filed in this court on October 31, 2018 (Doc. 1.), and
defendant filed its Answer on November 30, 2018 (Doc. 4).
Meanwhile, defendant has been litigating another wrongful
death action in Texas state court, arising from the same
incident (the “Kelli Most” litigation).
On February 15, 2019, the Texas state court denied
defendant's motion to dismiss the Kelli Most
litigation for forum non conveniens. On May 14, 2019,
plaintiffs learned of an action in intervention by
decedent's alleged spouse, claiming an interest against
defendant TEAM arising from decedent's death and joined
to the Kelli Most litigation. On July 16, 2019,
plaintiffs moved for voluntary dismissal to join the
Kelli Most litigation and intervenor-plaintiff's
claims, to consolidate the split claims arising from
under Rule 41(a)(2) is within the sound discretion of the
court.” Clark v. Tansy, 13 F.3d 1407, 1411
(10th Cir. 1993); see Wright & Miller, Fed.
Prac. & Proc. Civ. § 2364 (3d ed.) (August 2019
Update). In ruling on a motion under Rule 41(a)(2), the court
is to consider that the Rule is designed “primarily to
prevent voluntary dismissals which unfairly affect the other
side, and to permit the imposition of curative
conditions.” Clark, 13 F.3d at 1411. The
important consideration is “whether the opposing party
will suffer prejudice in light of the valid interests of the
parties, ” and “it is [this] prejudice . . .
rather than the convenience of the court, that is to be
considered in passing on a motion for dismissal.”
Id. (citations omitted).
determine the “legal prejudice” an opposing party
will suffer, the court considers factors including: (1) the
opposing party's effort and expense of preparation for
trial; (2) excessive delay and lack of diligence on the part
of the movant in prosecuting the action; and (3) insufficient
explanation for the need to take a dismissal. Id.
This list is non-exclusive list and not every factor need be
resolved in one party's favor. Phillips USA, Inc. v.
Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996)
(discussing factors used in other jurisdictions). When
considering “legal prejudice” generally, other
jurisdictions have concluded that legal prejudice requires
clear prejudice to a legal interest, claim, or argument,
rather than mere uncertainty, inconvenience, or a perceived
forum-based tactical advantage. Smith v. Lenches,
263 F.3d 972, 976 (9th Cir. 2001); see Potenberg v.
Boston Sci. Corp., 252 F.3d 1253, 1259-60 (11th Cir.
2001) (pending summary judgment motion insufficient where
“practical prejudice” alleviated by curative
seek dismissal and consolidation to join a wrongful death
matter in Texas state court, arising out of the same incident
as the instant case. Defendant TEAM argues that it will
experience legal prejudice by loss of the application of
federal and Kansas law. In particular, defendant argues that:
applying Texas law will deprive defendant of Kansas's
more favorable damages restrictions; discovery will be more
difficult in the Texas state system; and transfer will create
financial waste. Plaintiffs counter that defendant's
concerns are speculative rather than truly prejudicial and
that Texas procedures are sufficient for discovery.
court agrees that transfer is appropriate. The record shows
that plaintiffs moved for voluntary dismissal promptly upon
learning of the Kelli Most litigation in Texas state
court (See Doc. 44, at 2-3), and the court is
persuaded that the need to avoid inconsistent verdicts and
liability arising from the same incident is sufficient
explanation for plaintiffs' dismissal request. While
defendant has incurred some cost in defense of the instant
case, this matter is still in the motions and discovery
stage, summary judgment motions have not been filed,
and-evident from defendant's arguments-much of the work
and discovery in this case will be usable in the Texas
defendant argues applying Texas law constitutes legal
prejudice, defendant's argument depends on at least three
overly speculative predeterminations: first, that
defendant's alleged negligence will command an award in
excess of the damages allowed in Kansas; second, that
defendant's alleged negligence will require an award of
punitive damages under Texas law; and third, that
defendant's alleged negligence will suffice to impose
joint and several liability under Texas law. None of these
merely possible scenarios show clear legal prejudice, though
the court notes that Texas procedure provides a remedy for
some of defendant's concerns. Tex. Civ. Prac. & Rem.
Code Ann. § 33.016; see In re Martin, 147
S.W.3d 453, 458-59 (Tex. App-Beaumont 2004); CBI NA-CON,
Inc. v. UOP Inc., 961 S.W.2d 336, 339-41 (Tex.
App-Houston [1st Dist.] 1997). To the extent that the state
trial court's application of Texas law may be prejudicial
or erroneous, the state's appellate process is
appropriate for the resolution of that alleged error.
remaining concerns as to discovery and waste are either
similarly speculative and unpersuasive or pose
“practical prejudice, ” curable by imposing
conditions on dismissal. First, while defendant argues that
discovery may become more difficult under the timeline
imposed by the state court's docket control order, those
deadlines “apply . . . unless modified by the
Court.” (Doc. 83-3, at 1.) On consolidation, defendant
can request modification for any inconvenience caused by the
timing of this court's grant of plaintiffs' motion
and the case's migration from federal to state methods of
discovery. Second, as plaintiffs correctly note,
defendant's concerns of waste are curable by requiring
payment of costs directly attributable to the defense of this
action and unusable in the Texas litigation. Gonzales v.
City of Topeka Kan., 206 F.R.D. 280, 283 (D. Kan. 2001)
(“[U]nless the defendants would be seriously prejudiced
otherwise, a court should not condition a plaintiff's
dismissal upon payment of fees and cost for discovery that
the defendants may use against the remaining
the court concludes that voluntary dismissal should be
granted subject to two conditions requested by plaintiff:
first, to avoid an unfair effect of dismissal to either side,
all discovery taken in this matter may be used, subject to
the protective order, by either party in later litigation.
(See Doc. 47.) Second, plaintiffs shall pay the fees
and costs of discovery previously taxed and directly
attributable to the defense of this case only, and unusable
in any later action against remaining plaintiffs. Plaintiffs
may withdraw their motion for voluntary dismissal until on or
by Monday, October 28, 2019. If plaintiffs do not withdraw