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Osterhouse v. Grover

December 12, 2006

JADON S. OSTERHOUSE, A MINOR, BY MELANIE D. OSTERHOUSE, HIS MOTHER, AS NATURAL GUARDIAN AND NEXT FRIEND, MELANIE D. OSTERHOUSE, AND DAVID OSTERHOUSE, PLAINTIFFS,
v.
GREGORY L. GROVER, M.E.M.R., INC., TRANSGUARD INSURANCE COMPANY OF AMERICA, INC., AND RIGHTWAY DIESEL SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM and ORDER

Before this Court is Plaintiffs' motion for voluntary dismissal of their complaint without prejudice (Doc. 221). All four remaining defendants in this matter have filed objections to this motion (see Docs. 224, 225). For the following reasons, the motion is granted, but with terms and conditions attached.

A. Factual Background and Procedural History

This action was originally commenced in the Circuit Court of Madison County, Illinois on December 31, 2003. On February 11, 2004, this case was removed to this Court (Doc. 1). Plaintiffs' action arises out of a motor vehicle accident (the "accident") that occurred on October 22, 2002, on eastbound I-64 near Mt. Vernon, Illinois. The accident involved the alleged separation of an axle shaft and double set of truck wheels from a 1990 Kenworth over-the-road tractor, which was being driven by defendant Gregory L. Grover ("Grover"), owned by defendant M.E.M.R., Inc. ("MEMR"), and serviced by defendant Rightway Diesel Service ("Rightway") (Complaint, ¶¶ 10-12). The axle shaft allegedly crossed the median of an interstate highway and struck the vehicle in which plaintiff Melanie Osterhouse was riding (Complaint, ¶¶ 11, 71, 91-92). Plaintiffs allege that the accident was the cause of plaintiff Jadon Osterhouse's premature birth nine days later, as well as developmental complications resulting therefrom (Complaint, ¶¶ 14-16).

Now before this Court is Plaintiffs' motion to dismiss this matter without prejudice (Doc. 221). Therein, Plaintiffs assert that the longer-term effects of Jadon's injuries may not be fully recognized for another two to three years, and seek to voluntarily dismiss their claims "until such time as Jadon's developmental delay becomes more certain" (Doc. 221, pp. 1-2).

All four remaining Defendants object to Plaintiffs' motion (see Docs. 224, 225). Defendants argue that this Court should not allow Plaintiffs to dismiss this matter without prejudice, and should only grant dismissal if it does so either with prejudice, or with several terms and conditions Defendants assert are appropriate and necessary.

Analysis

FEDERAL RULE OF CIVIL PROCEDURE 41(a)(1) allows a plaintiff to voluntarily dismiss an action without a court order by filing a stipulation signed by all parties or by filing a "notice of dismissal" any time before the adverse party has filed an answer or moved for summary judgment. If those options are unavailable (as here, because Defendants have already filed answers), a plaintiff may move for a court order permitting dismissal under RULE 41(a)(2), which provides: 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.

Thus, under Rule 41(a)(2), a court may impose whatever conditions it believes are necessary to protect other parties in the suit from prejudice. Ratkovich v. Smith Kline, 951 F.2d 155, 157-58 (7th Cir. 1991); Brandt v. Schal Associates, Inc., 854 F.2d 948, 955 (7th Cir. 1988). Stated another way, Rule 41(a)(2) "preserves the plaintiff's right to take a voluntary non-suit and start over so long as the defendant is not hurt." Marlow v. Winston & Strawn, 19 F.3d 300, 303 (7th Cir. 1994), quoting McCall-Bey v. Franzen, 777 F.2d 1178, 1184 (7th Cir.1985).

The dismissal of a plaintiff's complaint under Rule 41(a)(2) lies within the discretion of the trial court, FDIC v. Knostman, 966 F.2d 1133, 1142 (7th Cir. 1992), but the Seventh Circuit has delineated certain factors to guide the trial court's determination of whether a defendant will suffer legal prejudice by dismissal. Ratkovich at 158. The factors include:

the defendant's effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal and the fact that a motion for summary judgment has been filed by the defendant.

Id., quoting Pace v. Southern Express Co., 409 F.2d 331, 334 (7th Cir.1969). These factors are simply a guide for the court in exercising its discretion, and all factors need not be present. Kovalic v. DEC Int'l, Inc., 855 F.2d 471, 474 (7th Cir.1988). "The enumeration of factors to be considered in Pace is not the equivalent to a mandate that each and every factor be resolved in favor of the moving party before dismissal is appropriate. It is rather simply a guide for the trial judge, in whom the discretion ultimately rests." Tyco Laboratories, Inc. v. Koppers Co., Inc., 627 F.2d 54, 56 (7th Cir. 1980). Using these factors as guidance, the Court makes the following observations.

As to the second and fourth factors, the Court finds these factors do not demonstrate that dismissal without prejudice would result in legal prejudice to Defendants. Although Defendants take issue with the Plaintiffs' timing and maneuvering in prosecuting their case, the record of this matter does not demonstrate that Plaintiffs have caused "excessive delay" or have shown a "lack of diligence" in prosecuting their claims. Moreover, not one of the four remaining defendants in this matter has filed a motion for summary judgment.

Regarding Plaintiffs' proffered explanation for taking a dismissal, the Court finds Plaintiffs' showing sufficient. Plaintiffs have provided the declarations of two separate physicians to support their contention that the longer-term effects of Jadon's injuries may not be fully recognized for another two to three years. This being the case, it would be premature to take this matter to trial before the extent of Jadon's injuries are fully realized. Each side would be potentially prejudiced if the case was forced to trial on the current January ...


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