United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff Betty Post's
motion for voluntary dismissal without prejudice. (Doc. No.
13). Defendant Dolgencorp, LLC, opposes the motion (Doc. No.
15), and Plaintiff filed a reply (Doc. No. 16). For the
reasons set forth below, Plaintiffs motion for voluntary
dismissal without prejudice will be denied.
September 18, 2018, Plaintiff filed her personal injury
lawsuit in the Circuit Court of Maries County, State of
Missouri. On February 1, 2019, Defendant removed the lawsuit
to federal court on the basis of diversity jurisdiction,
asserting that there exists complete diversity between the
parties and the amount of controversy exceeds $75,
March 28, 2019, Plaintiff filed the instant motion for
voluntary dismissal without prejudice, indicating her intent
to re-file and try this case in Missouri state court.
Plaintiff asserts that she intends to revise her Petition to
include individual defendants who are Missouri residents,
thus destroying diversity jurisdiction. Specifically,
Plaintiff intends to assert claims of individual negligence
against the store manager and employees on duty at the time
and/or tasked to monitor and clean the store. (Doc. No.
opposes the motion and argues that Plaintiff is engaging in
impermissible forum shopping. Defendant further maintains
that Plaintiff intends to fraudulently join unidentified
diversity-destroying store managers and employees against
whom Plaintiff has no independent claim. (Doc. No. 15).
Specifically, Defendant filed affidavits of the store manager
and employee working on the evening at issue stating that
they had no knowledge or information that there was any
plastic or other item on the floor where Plaintiff claims to
have fallen. In reply, Plaintiff disputes Defendant's
characterization of the state court action, but did not
otherwise dispute Defendant's arguments. (Doc. No. 16).
deciding whether to grant a motion for 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.'" Dormer v. Alcoa,
Inc., 709 F.3d 694, 697 (8th Cir. 2013) (quoting
Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212,
1213-14 (8th Cir. 2011)). A plaintiff cannot use a motion to
voluntarily dismiss to seek a more favorable forum.
decision whether to allow a party to voluntarily dismiss a
case rests upon the sound discretion of the court. Hamm
v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 950
(8th Cir. 1999); Blaes v. Johnson & Johnson, 858
F.3d 508, 512 (8th Cir. 2017) (citation omitted). If a
plaintiff files a motion to dismiss stating that he plans to
add a diversity-destroying defendant and re-file in state
court, it is an abuse of discretion if the district court
fails to analyze whether the plaintiffs claim against the
diversity-destroying defendant has any basis in law or fact.
Dormer, 709 F.3d at 696. An examination of the
merits of a plaintiffs proposed claims against a
diversity-destroying defendant is necessary because "an
attempt to advance a nonviable claim strongly suggests a
party's motive in requesting a voluntary dismissal is
merely to seek a more favorable forum." Id. at
Missouri law, an employee may be held personally liable to a
third party in certain instances. Augustine v. Target
Corp., 259 F.Supp.2d 919, 921 (E.D. Mo. 2003) (citing
State ex rel. Kyger v. Koehr, 831 S.W.2d 953, 956
(Mo.Ct.App. 1992) (citations omitted). "First, when an
employee has or assumes full and complete control of his
employer's premises, his liability to the public or to
invitees is the same as that of his employer."
Id. "A second situation involves liability on
the part of the employee who does not have complete control
of the premises but may be liable for injury to third persons
when he breaches some duty which he owes to such third
person." Id. "The test is whether he has
breached his legal duty or been negligent with respect to
something over which he did have control." Id.
the Court finds that a dismissal without prejudice would not
necessarily waste judicial resources or prejudice Defendant,
since the case is in the early stages of litigation. However,
turning to the merits of the proposed claims, Plaintiff has
provided very little information on the basis of his claims
against Defendant's store manager and employee.
Defendant, on the other hand, provides affidavits that
suggest that Plaintiff may not have any meritorious claims
against the diversity-destroying Defendants under Missouri
it is clear from Plaintiffs motion for voluntary dismissal
that she seeks to assert new claims against the store manager
and employees for the sole purpose of avoiding federal
jurisdiction. She states in her motion that she prefers that
her current attorney remain as her trial counsel, and
"Counsel does not desire to practice in the federal
court system, but rather in State of Missouri courts where
counsel has practiced since 1992." (Doc. No. 13-1).
Plaintiff then states her desire to limit her expenses and
costs associated with the case and that federal court has
greater expenses associated with electronic filing. Lastly,
Plaintiff states her preference to travel to a local
courthouse for pre-trial, trial, and other case-related
matters. These representations demonstrate that Plaintiffs
intent for requesting voluntary dismissal is to avoid federal
court, which is improper forum shopping under Eighth Circuit
precedent. Wingo v. State Farm Fire & Cas. Co.,
No. 13-3097-CV-S-FJG, 2013 WL 4041477, at *1 (W.D. Mo. Aug.
8, 2013). Therefore, the motion for voluntary dismissal will
IT IS HEREBY ORDERED that Plaintiff Betty
Post's motion for voluntary dismissal without ...