Opinion
Civil Action No: 99-2255, Section: "R"(3)
May 4, 2000
ORDER AND REASONS
Before the Court is the motion of plaintiff to dismiss this case without prejudice, pursuant to Federal Rule of Civil Procedure 41(a) (2). For the following reasons, plaintiff's motion to dismiss without prejudice is granted, conditioned upon the payment by plaintiff to defendant of reasonable attorneys' fees and costs associated with resolving this motion.
I. Background
Plaintiff Terry Hardy filed this personal marine injury case in this Court on July 23, 1999. In August 1999, the parties agreed to a dismissal without prejudice; however, the Clerk of Court did not accept the dismissal because court costs had not been paid. ( See Def.'s Opp'n Ex. A.) At that time, Leonard Radlauer was counsel for plaintiff. On February 17, 2000, Mr. Radlauer withdrew and Russell Allen Solomon was substituted as plaintiff's counsel. Omega filed its answer on February 28, 2000.
To date, a preliminary conference has been held in which the Courtroom Deputy Clerk selected dates for the pretrial conference and trial. Omega has scheduled myriad depositions and the parties have propounded some written discovery. In addition, the United States Magistrate Judge has ruled on a number of motions filed in connection with discovery matters. No substantive pretrial motions have been filed.
Plaintiff now moves to dismiss this case without prejudice, pursuant to Rule 41(a)(2). Defendant opposes this motion on the grounds that it will suffer prejudice if the case is dismissed without prejudice, and argues alternatively that this Court should dismiss the case with prejudice, or, in the event this Court grants plaintiff's motion, that it should impose attorneys' fees and costs on plaintiff as a condition of dismissal.
II. Discussion
Federal Rule of Civil Procedure 41(a)(2) governs opposed motions to dismiss without prejudice. It provides in pertinent part: "an action shall not be dismissed at the plaintiff's conditions as the court deems proper." FED. R. Civ. P. 41(a)(2). District courts have discretion to grant 41(a)(2) motions, subject to review on appeal for abuse of discretion. See Phillips v. Illinois Central Gulf R.R., 874 F.2d 984, 986 (5th Cir. 1989). Absent a showing that the defendant will suffer clear legal prejudice, courts generally grant motions to dismiss without prejudice. See Id. Such harm must be "greater than the mere prospect of a second lawsuit." Hartford Accident Indem. Co. v. Costa Lines Cargo Serv., Inc., 903 F.2d 352, 360 (5th Cir. 1990), citing 9 CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE PROCEDURE § 2364 (1971 Supp. 1990). In assessing prejudice, courts must examine the stage in the litigation at which the motion is made. See id. If a court decides to grant a voluntary dismissal, but finds that the defendants have expended considerable resources in defending the suit, it may impose attorneys' fees and costs on the plaintiff as a condition of dismissal. See Mortgage Guaranty Ins. Corp. v. Richard Carlyon Co., 904 F.2d 298, 300 (5th Cir. 1990), citing LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976); Ritchey v. Ledoux, 164 F.R.D. 186, 189 (E.D. La. 1995).
Although defendant argues that it may be subjected to another lawsuit in state court, the case law clearly states that the threat of a second suit does not rise to the level of cognizable legal harm for the purposes of a 41(a)(2) motion. See Hartford Accident, 903 F.2d at 360. Here, the only prejudice that this Court discerns from the record is that defendants have expended some resources in propounding discovery and in opposing this motion. Plaintiff filed this motion on April 18, 2000, approximately eight months after it initiated the lawsuit. As stated above, neither party has filed any substantive motions in this case, and it is not scheduled for trial until October of this year.
In sum, this Court does not find that this case has proceeded to an extent that warrants the denial of plaintiff's motion. Those instances in which the Fifth Circuit has affirmed the denial of such motions involved more extreme circumstances. See, e.g., Davis v. Huskipower Outdoor Equipment Corp., 936 F.2d 193, 199 (5th Cir. 1991) (affirming denial of 41(a)(2) motion when parties had filed numerous pleadings and memoranda, had attended conferences, and after magistrate had issued comprehensive recommendation adverse to plaintiffs); Hartford Accident, 903 F.2d at 360 (affirming denial when plaintiff moved for dismissal ten months after case had been removed to federal court, and after several hearings had been held, one defendant had been dismissed on summary judgment, and parties had undertaken substantial discovery). Thus, the Court grants plaintiff's motion to dismiss without prejudice.
Nevertheless, the Court notes that defendant has expended some resources in defending this lawsuit. Thus, the Court conditions dismissal on the award of reasonable attorneys' fees and costs associated with resolving this motion to dismiss. See Ledoux, 164 F.R.D. at 190. Because defendant has not provided this Court with a memorandum of costs, this Court will retain jurisdiction over this case until it determines what attorneys' fees and costs are a reasonable sum to be paid.
III. Conclusion
For the reasons stated above, plaintiff's motion to dismiss without prejudice under Rule 41(a)(2) is granted, conditioned upon the payment by plaintiff to defendant of reasonable attorneys' fees and costs associated with resolving this motion. Defendant shall submit a memorandum of costs setting forth these amounts.