The opinion of the court was delivered by: DAVID HERNDON, District Judge
On September 28, 2005, plaintiff Chester Evans filed a Motion
for Voluntary Dismissal pursuant to FEDERAL RULE OF CIVIL
PROCEDURE 41(a)(2) (Doc. 18). The same day, defendant Wal-Mart
Stores, Inc, filed a Memorandum in Opposition to Plaintiff's
Motion for Voluntary Dismissal. (Doc. 19.) Defendant opposes this
voluntary dismissal because it "fails to state any grounds or
allege any circumstances which would warrant a voluntary
dismissal without prejudice." (Doc. 19, ¶ 7.) However, it seems
the gravamen of Defendant's opposition is that it does not wish
to lose its "properly obtained diversity jurisdiction" in federal
court. (Id.) In the alternative, Defendant requests the Court
grant Plaintiff's motion, but with the condition that if
Plaintiff chooses to re-file his complaint, he must do so in the
United States District Court for the Southern District of
Illinois and that Plaintiff must also pay defendant's cost of
suit pursuant to FEDERAL RULE OF CIVIL PROCEDURE 41(d). (Id. at ¶ 9.)
FEDERAL RULE OF CIVIL PROCEDURE 41(a)(2) provides in relevant
part that: "[e]xcept as provided in paragraph (1) of this
subdivision of this rule, 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." Id. Therefore,
it is within the court's sound discretion in deciding whether to
permit a plaintiff to voluntarily dismiss an action pursuant to
Rule 41(a)(2). Tolle v. Carroll Touch, Inc., 23 F.3d 174, 177
(7th Cir. 1994); Tyco Laboratories, Inc. v. Koppers Co., Inc.,
627 F.2d 54, 56 (7th Cir. 1980).
In moving for a dismissal pursuant to Rule 41(a)(2), a
plaintiff bears the burden of proof in persuading the court that
such dismissal is warranted. Tolle, 23 F.3d at 177. Failure
to meet this burden must result in a denial of plaintiff's
request for dismissal. Id. at 177-78. In his Motion,
Plaintiff does not provide any reason whatsoever to warrant a
voluntary dismissal. (Doc. 18.) Due to Plaintiff's failure to
meet the requisite burden of proof, the Court cannot grant a
dismissal at this time. However, the Court would like to briefly
address the merits of Defendant's objections, in the event that
Plaintiff subsequently opts to file an amended motion to dismiss.
In deciding whether to grant a Rule 41(a)(2) motion to dismiss,
a court may look at a variety of factors, including: (1)
defendant's effort and resources already expended in preparing for trial; (2) excessive delay and
lack of diligence on the part of plaintiff in prosecuting the
action; and (3) insufficient explanation for the need of a
dismissal; and (4) whether a summary judgment motion has been
filed by defendant. Tyco, 627 F.2d at 56.
In this case, the substance of Defendant's objections to a
dismissal is that it has previously expended resources in
removing the matter from state to federal court. Defendant has
also filed its Answer and certain initial disclosures. Defendant
cites no other costs. In fact, the matter was scheduled for a
settlement conference until it was cancelled once Plaintiff
informed the Magistrate Judge that he was proceeding to move for
a voluntary dismissal.
Because a settlement conference was scheduled shortly after the
Court determined a scheduling order in this case, it does not
appear that discovery has been so extensive "as to be tantamount
to the `plain legal prejudice' which [would] preclude dismissal."
Id. (quoting Stern v. Barnett, 452 F.2d 211, 213 (7th Cir.
1971)). Nor has Defendant plead as much. Moreover, the fact that
this case has been properly removed from state court*fn1 and
that Plaintiff has not moved to remand does not vest Defendant
with an absolute procedural right to trial in federal court. See
Grivas v. Parmelee Transp. Co., 207 F.2d 334, 338 (7th Cir.
1953) (In considering whether a defendant had an "absolute right to trial
in a removed case," the Seventh Circuit stated that "a litigant
does not have a vested right in any given mode of procedure.").
Granted, there exists the distinct possibility that allowing a
dismissal could result in Plaintiff re-filing his action back in
state court, thereby subjecting Defendant to a second state suit.
Nevertheless, such an outcome does not amount to a finding of
"actual prejudice" necessary to refrain from granting a
dismissal. Lastly, contrary to what Defendant requests in its
opposing memorandum, the Court is unaware of any binding
authority allowing it to place either a jurisdictional or
pecuniary constraint upon an effort made by Plaintiff to re-file
its suit, should a dismissal be granted in the future. Defendant
has failed to include any such supporting legal authority in its
Because Plaintiff has failed to meet its requisite burden of
showing why a dismissal without prejudice pursuant to FEDERAL
RULE OF CIVIL PROCEDURE 41(a)(2) is warranted in this case,
Plaintiff's Motion to Dismiss is hereby DENIED. However,
Plaintiff may file an amended motion, in accordance with the
substance of this Order, for the Court's consideration.
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