United States District Court, N.D. Mississippi, Oxford Division
ORDER DENYING MOTION FOR VOLUNTARY DISMISSAL
M. BROWN, UNITED STATES DISTRICT JUDGE
personal injury action is before the Court on Vera
Pondexter's motion for dismissal without prejudice. Doc.
#27. Because dismissal without prejudice would cause plain
legal prejudice to the defendants in this action, the motion
will be denied.
February 25, 2016, Vera Pondexter filed suit in the Circuit
Court of Panola County, Mississippi, against Wal-Mart Stores
East, LP, and Wal-Mart Stores, Inc. (collectively,
“Wal-Mart”). Doc. #2. Pondexter asserts a claim
for negligence arising out of her slip and fall at a Wal-Mart
store in Batesville, Mississippi, and seeks damages for
medical expenses, lost earnings, physical injury, emotional
trauma, and pain and suffering. Id. at ¶¶
5-9, 14-23, 25-28. Wal-Mart filed a notice of removal in this
Court on March 31, 2016, alleging diversity jurisdiction.
Doc. #1 at ¶ 12-13. Wal-Mart answered the state court
complaint on April 5, 2016. Doc. #4.
16, 2016, United States Magistrate Judge S. Allan Alexander
issued a case management order setting, among other things,
the expert designation deadline as October 3, 2016, for
Pondexter and as November 3, 2016, for Wal-Mart; the
discovery deadline as January 3, 2017; and the deadline for
dispositive and Daubert motions as January 17, 2017. Doc.
#14. On September 29, 2016, Judge Alexander, on
Wal-Mart's unopposed motion, extended the experts
designation deadline to November 2, 2016, for Pondexter and
to December 2, 2016, for Wal-Mart. Doc. #23. Pondexter filed
“Plaintiff's Expert Designation Pursuant to Rule
26(A)(2) of the Federal Rules of Civil Procedure” on
October 31, 2016. Doc. #24. On December 2, 2016, Wal-Mart
filed its “Notice of Service of Designation of Expert
Witnesses.” Doc. #25.
December 5, 2016, Pondexter filed a “Notice of
Voluntary Dismissal without Prejudice Pursuant to Miss.
Fed.R.Civ.P. 41(a)(1).” Doc. #26. The same day,
Pondexter filed a “Motion for Voluntary Dismissal
without Prejudice Pursuant to Miss. Fed.R.Civ.P. 41(a)(1).
Doc. #27. On December 7, 2016, Wal-Mart filed both an initial
response in opposition to Pondexter's motion for
voluntary dismissal and an amended response. Doc. #28; Doc.
#29. Pondexter replied on December 12, 2016. Doc. #30.
Wal-Mart filed a second amended response on January 4, 2017.
January 17, 2017, Wal-Mart filed a motion for summary
judgment. Doc. #40. Pondexter responded in opposition to the
summary judgment motion on January 30, 2017, and Wal-Mart
replied on February 6, 2017. Doc. #42; Doc. #43.
41(a)(2) provides that where, as here, an opposing party has
served an answer or a motion for summary judgment and no
joint stipulation of dismissal has been filed, “an
action may be dismissed at the plaintiff's request only
by court order, on terms that the court considers
proper.” Decisions to grant dismissal under Rule
41(a)(2) fall within the discretion of the district court.
U.S. ex rel. Doe. v. Dow Chem. Co., 343 F.3d 325,
330 (5th Cir. 2003).
is no single formula for balancing a court's discretion
on a Rule 41(a)(2) determination.” Oxford v.
Williams Cos., Inc., 154 F.Supp.2d 942, 951 (E.D. Tex.
2001). However, “[m]otions for voluntary dismissal
generally should be freely granted unless the non-moving
party will suffer some plain legal prejudice other than the
mere prospect of a second lawsuit.” Test
Masters Educ. Servs., Inc. v. Robin Singh Educ. Servs.,
Inc., 799 F.3d 437, 448 (5th Cir. 2015) (internal
quotation marks omitted). To determine the existence of plain
legal prejudice, the Fifth Circuit has cited with approval a
four-factor test from the Eighth Circuit under which a court
considers: “(1) the defendant's effort and the
expense involved in preparing for trial, (2) excessive delay
and lack of diligence on the part of the plaintiff in
prosecuting the action, (3) insufficient explanation of the
need to take a dismissal, and (4) the fact that a motion for
summary judgment has been filed by the defendant.”
Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 318
n.3 (5th Cir. 2002) (quoting Witzman v. Gross, 148
F.3d 988, 992 (8th Cir. 1998)). In addition to these factors,
the Fifth Circuit has considered whether dismissal would
cause the non-movant to be stripped of an otherwise available
defense, Phillips v. Ill. Cent. R.R., 874 F.2d 984,
987 (5th Cir. 1989); and whether the dismissal is sought
“after an adverse trial court ruling, ”
Manshack v. Sw. Elec. Power Co., 915 F.2d 172, 174
(5th Cir. 1990).
Defendants' Effort and Expense
S“Where the plaintiff does not seek dismissal until a
late stage and the defendants have exerted significant time
and effort, the district court may, in its discretion, refuse
to grant a voluntary dismissal.” Hartford Acc.
& Indem. Co. v. Costa Lines Cargo Servs., Inc., 903
F.2d 352, 360-61 (5th Cir. 1990). Wal-Mart, arguing that this
case is over a year old, that discovery has been completed,
and that a motion for summary judgment has been filed,
submits that it has expended significant time and effort in
litigating this action. Doc. #29 at 5. Pondexter does not
dispute this ...