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Traditionalist American Knights of Ku Klux Klan v. City of Desloge

United States District Court, E.D. Missouri, Northern Division

September 21, 2016

TRADITIONALIST AMERICAN KNIGHTS OF THE KU KLUX KLAN, et al., Plaintiffs,
v.
CITY OF DESLOGE, MISSOURI, Defendant.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE

         The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). Plaintiffs Traditionalist American Knights of the Ku Klux Klan and Imperial Wizard Frank Ancona (collectively “KKK”) allege that an ordinance prohibiting solicitation and distribution in the roadways of Defendant City of Desloge, Missouri (“City”) violates the KKK's free speech rights. Following preliminary injunction proceedings, including an interlocutory appeal, and the disposition of early summary judgment motions, this matter is now before the Court on the KKK's Motion to Voluntarily Dismiss filed June 23, 2016. [Doc. 110.] The City opposes a dismissal without prejudice. The motion has been fully briefed and the Court heard oral argument on September 15, 2016. Having considered the briefs of the parties and argument from counsel, the Court will grant the motion and dismiss this action without prejudice but with conditions.

         I. Procedural Background

         The KKK filed this action on April 29, 2013 challenging an ordinance prohibiting solicitation and distribution in the City's roadways and, the next day, filed a motion for preliminary injunction. Shortly thereafter, the City enacted a revised version of the ordinance, which is currently in effect, and repealed the old ordinance. The KKK's Amended Complaint, filed on August 21, 2013, challenges both versions of the ordinance. [Doc. 24.] On September 11, 2013, the Court held a half-day hearing on the motion for preliminary injunction. On October 1, 2013, the Court entered a Memorandum and Order granting the motion. [Doc. 41.] The City appealed. On December 29, 2014, the Eighth Circuit Court of Appeals issued an opinion reversing and remanding. Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge, Mo., 775 F.3d 969 (8th Cir. 2014). The KKK's petition for rehearing was denied on March 30, 2015. [Doc. 55.]

         On remand, this Court held status conferences on April 23, July 1, and September 14, 2015 to discuss scheduling. The Court ultimately granted the parties leave to file early cross motions for summary judgment on purely legal grounds before setting a schedule for discovery and trial. The KKK moved for partial summary judgment on the theory that an intervening Supreme Court case, Reed v. Town of Gilbert, Arizona, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015), rendered the current ordinance content based and therefore subject to strict scrutiny. The City moved for summary judgment on the theory that the Eighth Circuit opinion was dispositive and that the KKK's challenges to the repealed ordinance were moot. On February 23, 2016, the Court entered a Memorandum and Order finding as moot the KKK's challenges to the repealed ordinance and otherwise denying the parties' motions for summary judgment. [Doc. 100.] The Court found that Reed did not render the ordinance content based and that the Eighth Circuit's opinion was based on the preliminary injunction record and was not a decision on the merits.

         The sole remaining claim in this action is Count III of the KKK's Amended Complaint, which alleges that the current ordinance violates the KKK's free speech rights. Following a scheduling conference on March 8, 2016, the Court entered a Case Management Order setting a discovery deadline of November 14, 2016, a dispositive motion deadline of December 15, 2016, and a trial date of June 19, 2017. [Doc. 104.] On June 23, 2016, the KKK filed its motion to dismiss the case without prejudice. [Doc. 110.] The Court stayed the deadlines set forth in the Case Management Order pending disposition of the KKK's motion. [Doc. 113.]

         II. Standard

         After the opposing party serves either an answer or a motion for summary judgment, absent a stipulation of dismissal, “an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2). A district court's decision to grant a plaintiff's motion for dismissal without prejudice pursuant to Rule 41(a)(2) is reviewed for abuse of discretion. Mullen v. Heinkel Filtering Sys., Inc., 770 F.3d 724, 727 (8th Cir. 2014). “The very concept of discretion presupposes a zone of choice within which the trial courts may go either way.” Kern v. TXO Prod. Corp., 738 F.2d 968, 971 (8th Cir. 1984).

         “The purpose of Rule 41(a)(2) is primarily to prevent voluntary dismissals which unfairly affect the other side.” Paulucci v. City of Duluth, 826 F.2d 780, 782 (8th Cir. 1987). “Courts generally will grant dismissals where the only prejudice the defendant will suffer is that resulting from a subsequent lawsuit.” Id. However, “a party is not permitted to dismiss merely to escape an adverse decision nor to seek a more favorable forum.” Mullen, 770 F.3d at 728 (internal quotations omitted).

         “When deciding whether to exercise its discretion to allow a voluntary dismissal, the district court should consider whether the party has presented a proper explanation for its desire to dismiss; whether a dismissal would result in a waste of judicial time and effort; and whether a dismissal will prejudice the defendants.” Id. (internal quotations omitted); see also Paulucci, 826 F.2d at 783 (courts consider “(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.”). “The time and effort invested by the parties, and the stage to which the case had progressed, are among the most important factors to be considered in deciding whether to allow a dismissal without prejudice, and, if so, on what conditions.” Kern, 738 F.2d at 972. The absence of a justification for the proposed dismissal may warrant denying a plaintiff's motion for dismissal without prejudice pursuant to Rule 41(a)(2). Paulucci, 826 F.2d at 783; Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 951 (8th Cir. 1999).

         “Legal prejudice means ‘something other than the necessity that defendant might face of defending another action.'” Mullen, 770 F.3d at 728 (quoting Kern, 738 F.2d at 970). It generally refers to the rights and defenses available to the defendant in future litigation. Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996). “The expense and effort of drafting and responding to discovery prior to dismissal does not constitute legal prejudice, ” nor does the loss of a “tactical advantage.” Mullen, 770 F.3d at 728. Rather, “[t]he Eighth Circuit has found legal prejudice … when dismissal would cause the loss of a material advantage the resisting party would enjoy only if the pending action were to continue, ” such as the loss of a proven, valid statute of limitations defense. United States v. Thirty-Two Thousand Eight Hundred Twenty Dollars & Fifty Six Cents ($32, 820.56) in U.S. Currency, 106 F.Supp.3d 990, 997 (N.D. Iowa 2015) (citing Metropolitan Fed. Bank of Iowa, F.S.B. v. W.R. Grace & Co., 999 F.2d 1257, 1262-63 (8th Cir. 1993)). Where a defendant has not made “the requisite showing of prejudice, ” the district court has “broad discretion to grant or deny [the] motion and [is] free to consider the full range of factors relevant to the exercise of that discretion.” Metropolitan Fed. Bank of Iowa, F.S.B., 999 F.2d at 1263.

         III. Discussion

         As an initial matter, the Court found that the KKK had standing to challenge the distribution provisions of the City's ordinance, but not the solicitation provisions, which were properly severable. [Doc. 41 p. 8.] Therefore, dismissal of the KKK's challenge to the solicitation provisions is necessarily without prejudice. County of Mille Lacs v. Benjamin, 361 F.3d 460, 464-65 (8th Cir. 2004).

         The KKK offers the following explanation for its desire to dismiss: “in light of how Defendant's laws have been enforced and the amendments made to the ordinances subsequent to this lawsuit being filed, the value of prevailing on the merits of their First Amendment challenge to the current ordinance has diminished in relation to the expense of pursuing this case further.” [Doc. 110 p. 2.] The City opposes a dismissal without prejudice and contends that the KKK is seeking to escape an adverse decision on the merits following the Eighth Circuit's preliminary injunction opinion and trying to get another bite at the apple in a more favorable forum in the future. The City argues that it would be a waste of the judicial resources expended over the more than three years that this case has been pending to dismiss it without prejudice. Finally, the City argues that it would be prejudiced ...


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