Opinion
Civil Action No. SA-05-CA-0455-XR.
November 29, 2005
ORDER
On this date, the Court considered Plaintiff's Motion to Dismiss and Defendant's opposition thereto. Plaintiffs have requested this Court dismiss their cause without prejudice. Defendant claims dismissal is improper based on the length of time the cause has been pending, the parties' preparations for trial, and the Court's prior rulings being adverse to Plaintiffs. After careful consideration of the pleadings and relevant case law, the Court GRANTS the motion (docket no. 19).
On September 22, 2004, Plaintiffs, husband and wife, filed suit against their former employer, Blackmon Mooring Steamatic of San Antonio ("BMS"), in the 285th District Court of Bexar County, Texas. Plaintiff Mark Yeoman alleges he was discharged for making a sexual harassment complaint, while his wife, Plaintiff Gayle Yeoman, alleges her husband's complaint was the reason she was discharged. BMS filed an answer and general denial of Plaintiffs' claims on October 14, 2004. While the case was pending in the 285th District Court, BMS served numerous discovery requests on Plaintiffs.
On May 18, 2005, BMS removed the state court action to this Court. Following removal, Plaintiffs continuously avoided cooperating with BMS. Plaintiffs' conduct necessitated BMS's filing of a motion to compel and motion for contempt. Both the motion to compel and motion for contempt were decided adversely to Plaintiffs. See Orders dated September 12, 2005 October 19, 2005. This Court has twice sanctioned Plaintiffs by awarding BMS attorney's fees associated with the prosecution of its motion to compel and motion for contempt. See Orders dated November 2, 2005 November 29, 2005. Plaintiffs now seek to dismiss their cause of action without prejudice.
Federal Rule of Civil Procedure 41(a)(2) provides that "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. . . . Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." FED. R. CIV. P. 41(a)(2). A district court should deny a motion for voluntary dismissal without prejudice only if granting the motion would cause the "defendant to suffer some cognizable prejudice greater than the mere prospect of a second lawsuit." Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 199 (5th Cir. 1991); Hartford Acc. Indem. Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 360-61 (5th Cir. 1990); see also United States ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 330 (5th Cir. 2003) ("As a general rule, motions for voluntary dismissal should be freely granted, absent some plain legal prejudice to the non-moving party."). "When a plaintiff fails to seek dismissal until a late stage of trial, after the defendant has exerted significant time and effort, then a court may, in its discretion, refuse to grant a voluntary dismissal." Davis, 936 F.2d at 199.
Plaintiffs have sought dismissal six months after BMS removed the case to federal court. Contrary to BMS's assertions, the case has made little forward progress. BMS has exerted some time to rein in Plaintiffs' discovery abuses through a motion to compel and motion for contempt. The Court, however, has compensated BMS for those efforts through an award of attorney's fees. Although the parties' have engaged in written discovery, no depositions have been scheduled or taken prior to Plaintiffs filing their motion to dismiss. The case is not set for trial until June 26, 2006, and the deadline for dispositive motions remains four months away. Unlike the procedural history of Dow Chemical, Davis, and Hartford, there has been no court ruling or government action demonstrating a weakness in Plaintiffs' case. See Dow Chemical, 343 F.3d at 330 ("[A]lthough no magistrate has ruled against Doe, the United States had declined to intervene in the suit, a move which could be interpreted by Doe as substantially weakening his case."); Davis, 936 F.2d at 199 ("Moreover, [Plaintiffs] filed their motion after the magistrate had considered the case and issued a comprehensive recommendation that was adverse to their position."); Hartford, 903 F.2d at 361 ("Before [the motion to dismiss] was filed, hearings were conducted on various issues, significant discovery was had, Costa had already been granted summary judgment, and a jury trial had been set for the remaining defendants."). Although Plaintiffs' counsel G. Scott Hill's disregard of prior court orders requires a close examination of his motive for voluntarily dismissing this action, BMS has failed to demonstrate any "cognizable prejudice greater than the mere prospect of a second lawsuit." Davis, 936 F.2d at 199.
The Court's docket sheet reveals that outside of the parties' discovery disputes and Plaintiffs' motion to dismiss, there have been no other court filings.
BMS requested dates on which it could depose Plaintiffs on October 31, 2005, three days after Plaintiffs filed their motion to dismiss.
The Court finds no reason for this case to proceed further with reluctant plaintiffs and no cognizable prejudice to BMS. It is in the interest of judicial resources and economy that the Court GRANTS the motion (docket no. 19) and DISMISSES the cause without prejudice. All costs and fees shall be borne by the party incurring the same.