United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON, UNITED STATES DISTRICT COURT
matter is before the Court on Plaintiff's Motion to
Dismiss. (ECF No. 32). The Motion is fully briefed and ready
April 5, 2019, Plaintiff filed a Petition in the Circuit
Court of St. Louis County, Missouri. Plaintiff filed an
Amended Petition on April 22, 2019. In her Amended Petition,
Plaintiff asserted a strict liability claim against Defendant
Mentor World Wide LLC as manufacturer of her breast implants;
a strict product liability claim against Defendant St. Louis
Cosmetic Surgery, Inc., the clinic where the implants were
placed; and a negligence claim against Defendant Haley, the
driver of a vehicle which rear-ended the Plaintiff.
5, 2019, Defendants Removed the case from state court. (ECF
No. 1). On June 6, 2019, Defendant St. Louis Cosmetic
Surgery, Inc filed a Motion to Dismiss Count II of
Plaintiff's Complaint. (ECF No. 10). On June 11, 2019,
the Plaintiff brought a Motion to Remand. (ECF No. 12). On
June 12, Defendant Mentor World Wide LLC also filed a Motion
to Dismiss the case in its entirety. (ECF No. 17). The Court
took up all the motions together and on July 19, 2019, the
Court held that Count III of Plaintiff's Complaint for
negligence against Defendant Haley ought to be severed and
remanded to state court. (ECF Nos. 28, 29). Additionally,
Plaintiff's claim under Count II for Strict Products
Liability against Defendant St. Louis Cosmetic Surgery, Inc.
was dismissed as not being cognizable under Missouri Law.
(ECF No. 28). Count I for Products Liability remains against
Defendant Mentor World Wide LLC. On its Motion to Dismiss,
Defendant raised a preemption issue that the Court determined
would be more appropriate for summary judgement.
August 2, 2019, Defendant Mentor World Wide LLC filed an
answer in this case. (ECF No. 30). On September 20, 2019
Plaintiff filed a Motion to Dismiss Without Prejudice. (ECF
No. 32). The Defendant opposes this motion. Defendant argues
that Plaintiff has not satisfied the standards for voluntary
dismissal in accordance with Fed.R.Civ.P. 41(a)(2) and
therefore should not be permitted to dismiss without
prejudice, or in the alternative should pay attorney fees if
the Court dismisses Plaintiff's case. (ECF No. 35).
Rule of Civil Procedure 41 allows the Plaintiff to dismiss
after the Defendant has filed an answer only by a stipulation
of dismissal signed by all parties who have appeared.
Fed.R.Civ.P. 41(a)(1)(A)(ii). “Except as provided in
Rule 41(a)(1), an action may be dismissed at the
plaintiff's request by court order, on terms that the
court considers proper.” Fed.R.Civ.P. 41(a)(2). Rule
41(a)(2) is intended “to prevent voluntary dismissals
which unfairly affect the other side.” Paulucci v.
City of Duluth, 826 F.2d 780, 782 (8th Cir. 1987). In
ruling on the Plaintiff's motion, the Court should
consider whether the Plaintiff has presented a proper
explanation for its desires to dismiss, whether a dismissal
will result in waste of judicial time and effort, and whether
a dismissal will prejudice the defendant. Mulen v.
Heinkel Filtering Sys., Inc., 770 F.3d 724, 728
(8th Cir. 2014).
in her Motion to Dismiss has failed to give a reason for
wanting to dismiss this case without prejudice. Defendant
raises concerns about Plaintiff's intent to refile in
state court or to escape an adverse decision. (ECF No. 35,
3-4). Dismissal for the purpose of finding a more favorable
forum or to escape an undesirable outcome is inappropriate.
See, Hamm v. Rhone-Poulenc Rorer Farms.,
Inc. 187 F.3d 941, 950 (8th Cir. 1999)(holding that
a party is not permitted to dismiss to escape an adverse
decision); see also, Donner v. Alcoa, Inc.,
709 F.3d 694, 697 (8th Cir. 2013)(“a party may not
dismiss merely to escape an adverse decision or to seek a
more favorable forum.”); and see, Blaes v. Johnson
& Johnson, 858 F.3d 508, 513 (8th Cir.
2017)(“A Plaintiff cannot use a motion to voluntarily
dismiss to seek a more favorable forum.”). Plaintiff
further fails to reply to Defendant's allegations.
See, Walton v. Wal-Mart Stores, Inc., No. 4:09CV4
HEA, 2010 WL 1706047, at *1 (E.D. Mo. Apr. 28, 2010)(noting
that “[i]n the absence of any explanation as to the
need for taking a dismissal, it appears likely that Plaintiff
seeks to dismiss the case in order to avoid an adverse
decision or to seek a more favorable forum.”). Upon
weighing the relevant factors in this case - Plaintiff's
lack of proffered reasons for dismissal at this juncture, and
Defendant's concerns regarding prejudice - the Court will
dismiss Plaintiffs case with prejudice.
IT IS HEREBY ORDERED that Plaintiff's
Case is hereby DISMISSED WITH PREJUDICE, a