United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiff's motion to
voluntarily dismiss her case without prejudice. Defendants
have filed a response in opposition and the issues are fully
April 29, 2014, the St. Louis County Police Tactical Response
Unit executed a search warrant at plaintiff's home in St.
Louis County. Plaintiff alleges that defendant Robert Rinck,
a St. Louis County police officer assigned to the
“problem properties unit, ” obtained the warrant
even though she had agreed to make arrangements for him to
inspect her home. Plaintiff further alleges that the Tactical
Response Unit battered in her front door while she and other
family members, including a child, were present. Defendant
Corey Zavorka, the first officer who entered the home, shot
and fatally wounded the family dog.
2, 2015, plaintiff filed this action pursuant to 42 U.S.C.
§ 1983, claiming that defendants Rinck and Zavorka
violated her rights under the Fourth, Fifth and Fourteenth
Amendments to the United States Constitution. Plaintiff also
asserts state law tort claims. On August 18, 2015, the Court
dismissed plaintiff's claim that St. Louis County was
liable for the constitutional violations committed by the
individual defendants based on the theory of respondeat
superior. [Doc. # 17]. On October 28, 2015, plaintiff
file a motion for leave to amend her complaint to add three
new defendants, assert a new claim against defendant Zavorka,
and assert three claims against St. Louis County for
municipal liability. On November 14, 2016, the Court denied
plaintiff's motion for leave to amend for failure to
establish good cause to modify the Case Management Order as
required by Fed.R.Civ.P. 16(b). On December 5, 2016,
plaintiff filed this motion to voluntarily dismiss without
Rule of Civil Procedure 41(a)(2) provides that after a
defendant has served its answer, “an action may be
dismissed at the plaintiff's request only by court order,
on terms that the court considers proper.” 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.”
Mullen v. Heinkel Filtering Sys., Inc., 770 F.3d
724, 727-28 (8th Cir. 2014) (internal quotations and
citations omitted). “A party is not permitted to
dismiss merely to escape an adverse decision nor to seek a
more favorable forum.” Donner v. Alcoa, Inc.,
709 F.3d 694, 697 (8th Cir. 2013) (citation omitted).
offers three explanations in support of her motion to
dismiss. First, in February 2016, her primary attorney
withdrew from the representation to accept other employment.
Although three attorneys subsequently entered their
appearance on plaintiff's behalf, two of the three
anticipate being unavailable to assist in the representation
and the third did not enter his appearance until July 2016.
Plaintiff acknowledges that the anticipated departure of two
of her attorneys is speculative, but argues that waiting for
their actual departure will preclude voluntary dismissal.
Second, plaintiff claims to have learned new information
during witness depositions on November 30, 2016, including
that an unknown officer aimed a gun at the head of
plaintiff's son during the execution of the warrant. As
defendant notes, the witnesses in question were
plaintiff's sons and the mother of her grandson. It is
unknown whether the witnesses failed to disclose this
information earlier to plaintiff's counsel and, if so,
why they failed to disclose it. Finally, plaintiff contends
that the denial of her motion to amend her complaint will
require her to file a separate lawsuit and engage in dual
litigation, which would waste judicial resources.
the seriousness of the allegations and the number of
potential defendants, the Court finds that plaintiff has
offered proper explanations for dismissal and is not seeking
a more favorable forum. Although plaintiff seeks dismissal to
avoid the Court's order denying her leave to file an
amended complaint, this factor has little significance where,
as here, a plaintiff intends to pursue the rejected claims in
a separate lawsuit. Indeed, dismissal will permit plaintiff
to proceed in a single lawsuit, which will greatly promote
judicial efficiency and reduce litigation expenses for all
argue that they will be prejudiced by dismissal because they
have expended substantial time and expense on their defense.
They represent that they have completed the depositions of
all the fact witnesses they intend to pursue. In addition,
defendants argue that the threat of ongoing litigation
amounts to unwarranted prejudice. Legal prejudice means
“something other than the necessity that defendant
might face of defending another action.”
Mullen, 770 F.3d at 728 (citation omitted).
Similarly, the expense and effort of drafting and responding
to discovery prior to dismissal does not constitute legal
prejudice. Id. With respect to defendants'
contention that the litigation is advanced, the Court notes
that discovery remains open, the deadline for filing
dispositive motions is more than a month away, and trial is
not set until August 2017.
41(a)(2) allows a court to dismiss an action upon terms that
the court deems proper. Here, defendants ask that the Court
require plaintiff to pay costs as a condition of any
dismissal. The Court declines to do so. However, to avoid
unnecessary expense, the parties will not be required to
re-depose witnesses or engage in other repetitive discovery.
Therefore, as a condition of dismissal, all discovery
obtained in this case shall be used in any subsequent
litigation based on the same claims asserted here.
IT IS HEREBY ORDERED that plaintiff's
motion to voluntarily dismiss without prejudice pursuant to
Fed.R.Civ.P. 41(a)(2) is granted on the
condition that all discovery obtained in this case shall be