United States District Court, W.D. Oklahoma
NAIR RODRIGUEZ, as next of kin to THE ESTATE OF LUIS RODRIGUEZ, et al ., Plaintiffs,
WARREN THEATRES, LLC, et al ., Defendants.
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE
matter comes before the Court upon Plaintiffs' Motion for
Dismissal Without Prejudice [Doc. No. 133], filed pursuant to
Fed.R.Civ.P. 41(a)(2). All defendants oppose the Motion,
objecting to a dismissal without prejudice to refiling and
alternatively requesting a dismissal order that imposes
conditions for refiling. They propose limiting
Plaintiffs' claims and evidence in a subsequent case to
what is currently available in this case, and requiring
Plaintiffs and their counsel “to pay all costs incurred
in [this action] as a condition precedent to their ability to
re-file this litigation.” See Warren Theatres
Defs.' Obj. [Doc. No. 134] at 11 (citing Fed.R.Civ.P.
41(d)). Plaintiffs have filed a reply brief, and the Motion
is at issue.
ask to dismiss their action asserting claims under 42 U.S.C.
§ 1983 and state law regarding the death of Luis
Rodriguez. The stated reason is that “Plaintiff [Nair
Rodriguez] has had to temporarily relocate to Puerto Rico for
an undetermined amount of time” due to a death in her
family; “this will result in significant travel expense
for the Plaintiff and as she is unemployed, she does not have
the means to travel back and forth to Oklahoma from Puerto
Rico in order to continue pursuing justice for her husband at
this time.” Pls.' Mot. Dismissal [Doc. No. 133],
¶¶ 5-6. Mrs. Rodriguez is the personal
representative of the Estate of Luis Rodriguez, which is the
primary plaintiff in the case and the only plaintiff for a
§ 1983 claim. The Motion is silent concerning Plaintiff
Luinahi Rodriguez except to state that she joins in the
request for dismissal. Id. at 1.
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 Brown v. Baeke, 413 F.3d 1121,
1123 (10th Cir. 2005). A district court may allow a plaintiff
to dismiss an action “on terms that 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.'” Brown, 413 F.3d
at 1123 (quoting Phillips USA, Inc. v. Allflex USA,
Inc., 77 F.3d 354, 357 (10th Cir. 1996)). “Absent
‘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); accord Brown, 413 F.3d at 1123.
whether an opposing party will suffer “legal
prejudice” from a dismissal requires a consideration of
“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 the litigation.'” See
Brown, 413 F.3d at 1124 (quoting Ohlander, 114
F.3d at 1537); see also Clark, 13 F.3d at 1411.
“Prejudice 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.” Brown, 413 F.3d at 1124 (citation
consideration of the unique circumstances presented in this
case, the Court finds that a dismissal of the case without
prejudice and without any conditions to refiling would result
in legal prejudice to Defendants, but a dismissal subject to
curative conditions should be permitted. Plaintiffs'
request comes more than two years after they originally
commenced this action in state court and after a substantial
procedural history; the case was removed upon Plaintiffs'
filing of a third amended petition adding a § 1983
claim. The instant Motion was filed after most defendants had
filed dispositive motions and shortly before the May 5, 2017
deadline to complete discovery. Defendants have invested
substantial time, effort, and expense in defending
Plaintiffs' claims and preparing their cases, including
making expert disclosures and filing dispositive motions.
Thus, the potential prejudice to Defendants is significant.
They argue persuasively that it would be inequitable to allow
Plaintiffs to restart the case simply because Mrs.
Rodriguez's commitment to pursuing it has temporarily
other hand, Mrs. Rodriguez's reason for dismissing the
case has developed recently, and there has been no lack of
diligence on her part in prosecuting the action. To the
contrary, Mrs. Rodriguez has expressed extreme frustration -
to the point of engaging in conduct for which Defendants
sought sanctions - regarding delays in the litigation.
Plaintiffs and their counsel have been actively participating
in discovery, and the length of time the case has been
pending is due partly to circumstances beyond their control,
such as motion practice and the need for court rulings. It
would be inequitable to require Plaintiffs to push forward
under circumstances where Mrs. Rodriguez is presently absent
from the state and unavailable to participate in the
litigation. Defendants' contention that Mrs. Rodriguez
need not be present to pursue the case is unpersuasive in
light of her status as the representative of the
decedent's estate (the § 1983 plaintiff) and
Defendants' recently-filed motion to compel discovery
based on her alleged lack of cooperation, particularly
considering her past level of involvement. On prior
occasions, Defendants have complained that Mrs. Rodriguez was
too involved in discovery. The deadline to complete
discovery has not expired, but was quickly approaching when
the Motion was filed.
question remains what conditions could prevent prejudice to
Defendants if Plaintiffs dismiss this case and later file a
second action based on the same claims against the same
defendants. Rule 41 provides that in this situation, upon
refiling, a district court: “(1) may order the
plaintiff to pay all or part of the costs of that previous
action; and (2) may stay the proceedings until the plaintiff
has complied.” See Fed. R. Civ. P. 41(d).
Also, a district court has inherent authority to impose
conditions “designed to alleviate any prejudice a
defendant might otherwise suffer upon refiling of an
action.” See Am. Nat'l Bank & Trust Co. v.
Bic Corp., 931 F.2d 1411, 1412 (10th Cir. 1991).
case, Defendants' claim of prejudice is based almost
exclusively on their investment of time and resources in
defending this case, conducting discovery, and (as to some
defendants) filing summary judgment motions. An appropriate
way to alleviate this burden is to order that all discovery
conducted in this case can be used in a refiled case and
cannot be duplicated. Under this condition, absent agreement
of the parties, no witness will be deposed a second time; no
completed deposition will be reopened; no written discovery
will be repeated; and limits on discovery imposed by the
Federal Rules of Civil Procedure may not be
exceeded. See Fed. R. Civ. P. 30(a)(2)
& 33(a). If the discovery conducted in this case carries
over to a new case, Defendant's discovery expenses will
not be wasted or incurred a second time.
did incur costs, however, that will not be recoverable after
the dismissal or would be duplicated in a future case. The
Court finds that some of these costs should be borne by
Plaintiffs if they choose to refile, including filing fees,
service fees, and copying costs that are authorized to be
taxed by the Clerk under 28 U.S.C. § 1920.Accordingly, the
Court will authorize Defendants to file a bill of costs after
the dismissal of this action as provided by LCvR54.1, and
will direct the Clerk to determine taxable costs in the usual
manner, except deposition costs shall not be included
(see supra note 4). This taxation of costs will not
be included in the judgment in this case, but payment will be
required as a condition to refiling a second § 1983
action pursuant to Rule 41(d).
these reasons, the Court finds that Plaintiffs should be
permitted to dismiss their action without prejudice to
refiling but conditions upon any future filing should be
imposed as set forth in this Order.
THEREFORE ORDERED that Plaintiffs' Motion for Dismissal
Without Prejudice [Doc. No. 133] is GRANTED, as set forth
herein. This action is DISMISSED WITHOUT PREJUDICE to
refiling, subject to the following conditions:
• All discovery conducted in this case can be used in a
refiled case and no prior discovery can be duplicated.
• Taxable costs of this action shall be determined by
the Clerk as provided by LCvR54.1, except deposition costs
shall not be included, and payment of such costs shall be a
condition to refiling ...