Opinion
Case No. A4-04-02.
September 10, 2004
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS WITHOUT PREJUDICE UNDER RULE 41(a)(2)
Before the Court is the Plaintiff's Motion to Dismiss Without Prejudice filed pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure on July 20, 2004. Defendants Canadian Pacific Railway Company, Canadian Pacific Limited, Canadian Pacific Railway Limited and Soo Line Railroad Company filed a response in opposition to the motion on August 5, 2004.
I. BACKGROUND
The Plaintiff's underlying action stems from a train derailment that occurred on or about January 18, 2002. The derailment took place at approximately 1:39 a.m., west of Minot, North Dakota. The derailment caused over 210,000 gallons of anhydrous ammonia to be spilled from derailed train cars. (Complaint ¶¶ 10-11).
All references to Plaintiff's "Complaint" refer to the amended complaint.
The anhydrous ammonia blanketed the area in and around the spill, including the Grabinger's property. (Complaint ¶¶ 44-49). The Plaintiff's husband died as a result of the derailment. (Complaint ¶¶ 54-55).
On January 9, 2004, the Plaintiff filed a personal injury and wrongful death action with this Court. The Plaintiff amended her complaint on January 16, 2004. On July 20, 2004, Plaintiff filed this motion requesting that the Court dismiss her claim without prejudice under Rule 41(a)(2) of the Federal Rules of Civil Procedure. Defendants Canadian Pacific Railway Company, Canadian Pacific Limited, Canadian Pacific Railway Limited, and Soo Line Railroad Company (collectively, "Defendants") filed a response resisting the motion. The remaining defendants, Trinity Industries, Inc., Trinity Rail Group LLC, GATX Rail Corp., CF Industries, Inc., and Canadian Fertilizer Limited, did not respond to the motion to dismiss. See N.D. Ct. R. 7.1(B)(2). Accordingly, Local Rule 7.1(C) provides that a failure of an adverse party to file a brief with the Court "may be deemed an admission that, in the opinion of counsel, the motion is well taken." N.D. Ct. R. 7.1(C).
II. LEGAL DISCUSSION
Rule 41(a)(2) of the Federal Rules of Civil Procedure provides in relevant part that "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." Fed.R.Civ.P. 41(a)(2). It also states that dismissals under this Rule are to be made without prejudice unless otherwise specified. Id.
Motions to dismiss without prejudice under Rule 41(a)(2) are said to be within the sound discretion of the court. Witzman v. Gross, 148 F.3d 988, 991 (8th Cir. 1998) (citing Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)). In exercising its discretion, a Court can consider several factors including "whether a party has presented a proper explanation for its desire to dismiss, whether a dismissal would result in a waste of judicial time and effort, and whether a dismissal will prejudice the defendants." Hamm v. Rhone-Poulenc Rorer Pharmaceuticals, Inc., 187 F.3d 941, 950 (8th Cir. 1999). Additionally, a party is not allowed to seek dismissal simply to avoid an adverse decision or to seek a more favorable forum. Id. (citingHolmgren v. Massey-Ferguson, Inc., 516 F.2d 856, 857 (8th Cir. 1975); International Shoe Co. v. Cool, 154 F.2d 778, 780 (8th Cir.), cert. denied, 329 U.S. 726 (1946); see also Witzman, 148 F.3d 988, 992 (8th Cir. 1998); Paulucci v. City of Duluth, 826 F.2d 780, 784 (8th Cir. 1987) (setting forth similar factors for ruling on a Rule 41(a)(2) motion).
The Plaintiff has asked to have her claim dismissed because she has filed an identical claim in the District Court of Hennepin County in Minnesota. That case is currently scheduled for trial in Minnesota on October 10, 2005. The Court was made aware of Plaintiff's simultaneous action at the outset:
Plaintiffs' counsel wish to inform this Court that they are filing this action in this forum only because the NTSB has not finalized its report and they must protect their clients against jeopardy on statute of limitations issues. Plaintiffs believe that the most convenient and appropriate forum for this action is the District Court of Hennepin County, Minnesota, where the Canadian Pacific defendants are headquartered and where critical decisions were made. Plaintiffs have already commenced an action in Hennepin County, and they intend to proceed with that action. Nonetheless, Plaintiffs are filing this action in this forum, at this time, because of their unique lack of information resulting from the pendency of the final report of the NTSB and the risk created by that lack of information.
(Complaint ¶ 8). It is clear that the Plaintiff filed this action as a precautionary measure. The Plaintiff stated that she was aware of a two-year statute of limitations that was running and that some of her claims could be barred in North Dakota if the Hennepin County action were to be dismissed on a venue challenge. The Plaintiff's initial concerns regarding personal jurisdiction and venue in the Hennepin County action have now dissipated. Therefore, this motion to dismiss should not be unexpected as it is consistent with the disclaimer set forth in the original complaint.
Plaintiff also cites several reasons in her motion why she believes that Hennepin County is a more appropriate forum: "the Hennepin County action was commenced first; it is favored as the Plaintiff's choice of forum; it has progressed much further than this action; it is more convenient and cost efficient; and Defendant has actually argued in another case that a fair jury trial is impossible in Minot or Bismarck, North Dakota because of the media coverage of the Minot derailment."
The Court finds that this factor weighs in favor of granting the motion to dismiss.
The parties have differing takes on the progression of this case. The Plaintiff contends the case is in its infancy because "[n]o discovery has taken place, and no schedule has been set." The Plaintiff also points out that certain defendants have yet to answer. The Defendants attribute the slow progression to what they call "stall tactic[s]."
Whether a dismissal at this stage of the proceedings would amount to a waste of judicial time and resources is another factor to be considered. Both parties admit that this action is in its early stages. The Court agrees with that assessment. Defendants GATX Rail Corp., Trinity Industries Inc., and Trinity Rail Group, LLC, have not yet filed an answer, and defendants Canadian Fertilizer Limited and CF Industries, Inc., have neither entered an appearance nor answered. Discovery has not begun, no scheduling order has been set, and no trial date has been scheduled. While the reason for the delay is disputed, the fact remains that the action has progressed slowly, and the Court's action thus far reflects that pace.
On February 17, 2004, the Court stayed the action because the Plaintiff had a simultaneous action pending in the United States District Court of Minnesota. On April 14, 2004, approximately two months later, the Court lifted the stay because the District of Minnesota federal action was remanded back to state court. In late August and early September 2004, the Court issued orders granting defendants GATX Rail Corp., Trinity Industries Inc., and Trinity Rail Group, LLC, additional time to answer the Plaintiff's complaint pending this present motion. It is clear that little judicial time and resources have been spent on this action to date. A dismissal of the federal action at this stage would conserve judicial resources by avoiding duplication of efforts by two separate courts. The Court finds that this factor weighs in favor of granting the motion to dismiss.
Defendants contend they will be "seriously prejudiced" if the Plaintiff's motion to dismiss is granted because the Minnesota state court may have difficulty compelling several North Dakota witnesses to appear in court. The Defendants state that a "vast majority of witnesses who may be called to trial live in North Dakota." The Defendants have submitted an 18-page witness list, including 330 names of potential non-party North Dakota witnesses. See Affidavit of Adam C. Morris (Docket No. 16). The names include residents of Tierracita Vallejo, first responders, treating medical personnel, police/fire department employees, contractors, truck drivers, the mayor of Minot, Minot city council members, Representative Earl Pomeroy and his delegation, and many more. The concern is that Hennepin County may be unable to attain personal jurisdiction over many of these North Dakota residents, and that could require the Defendants to try their case partly by deposition.
The Plaintiff contends that the Defendants concerns are unfounded. The Plaintiff notes that many of the names on the list would never be called to testify at trial. Plaintiff summarizes that "Soo Line CP has apparently attempted to list all persons in North Dakota who performed some activity relating to the derailment rather than individuals who might offer testimony relevant to this case." The Eighth Circuit has stated that the primary purpose of Rule 41(a)(2) is "to prevent voluntary dismissals which unfairly affect the other side." Paulucci v. City of Duluth, 826 F.2d 780, 782 (8th Cir. 1987). Courts have traditionally held that the applicable standard is whether the defendant would suffer some "plain legal prejudice." New York, C. St. L.R. Co. v. Vardaman, 181 F.2d 769, 770 (8th Cir. 1950) (citing Cone v. West Virginia Pulp and Paper Co., 330 U.S. 212, 217 (1947)); see also Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997); Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996); Phillips v. Illinois Cent. Gulf R.R., 874 F.2d 984, 986 (5th Cir. 1989); Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986); McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856-57 (11th Cir. 1986).
The Court recognizes that many potential witnesses reside in North Dakota. The witness list submitted by the Defendants, which contains a total of more than 400 witnesses, is speculative at best and unrealistic for trial purposes. The Court, in its discretion, finds that a dismissal at this stage would not unfairly prejudice the Defendants, particularly where there are more than 35 other personal injury cases currently venued in Minnesota arising out of the same derailment and involving the same defendants. This fact weighs in favor of granting the motion to dismiss.
Finally, there are no allegations on behalf of either party that the Plaintiff is seeking a dismissal in order to avoid an adverse decision or to seek a more favorable forum. There is no evidence of impermissible forum shopping in this case. This final factor also weighs in favor of granting the motion to dismiss.
III. CONCLUSION
In summary, the Court finds that the Plaintiff has provided a reasonable and foreseeable explanation for the pending motion to dismiss. The Court also finds that a dismissal at this stage of the federal court proceedings would not amount to a waste of judicial time and resources. Additionally, the Defendants will not be seriously prejudiced by a dismissal. While some of the Defendants have raised objections to a dismissal, the Court notes that several Defendants did not respond to the Plaintiff's motion to dismiss. Those Defendants are seemingly unopposed to a dismissal of the federal court action in North Dakota. Finally, the Court finds that the Plaintiff is not attempting to avoid an adverse decision or seek a more favorable forum by the filing of the motion to dismiss. For these reasons, the Court in its discretion, and after careful consideration of all relevant factors, concludes that a Rule 41(a)(2) dismissal is warranted and appropriate. The Plaintiff's Motion to Dismiss Without Prejudice (Docket No. 11) is GRANTED.