Opinion
No. 99-10365-GAO
March 16, 2000
MEMORANDUM ORDER
The plaintiff, American Science and Engineering, Inc. (ASE), has moved to dismiss without prejudice its suit against the Honorable Raymond W. Kelly, the Commissioner of the United States Customs Service. This motion comes after expedited discovery has been conducted, an evidentiary hearing completed, and the plaintiff's motion for a preliminary injunction denied. See American Science and Eng'g Inc. v. Kelly, 69 F. Supp.2d 227 (D. Mass. 1999). The defendant and the intervenor, EGG Astrophysics Research Corporation (EGG), both oppose this motion. Instead, they ask the Court to dismiss the action with prejudice or, alternatively, to dismiss without prejudice and award them costs and attorney's fees.
Several factors are typically used to assess whether dismissal without prejudice is warranted under Fed.R.Civ.P. 41(a)(2): the plaintiff's diligence, the sufficiency of the plaintiff's reasons for dismissal, the effort and expense incurred by the defendant to date, and the extent to which the litigation has progressed. See Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997) (stating that each factor does not have to be resolved in favor of the opposing party in order to deny the motion);Grover v. Eli Lilly and Co., 33 F.3d 716, 718 (6th Cir. 1994); Kovalic v. DEC Int'l. Inc., 855 F.2d 471, 473 (7th Cir. 1988).
The Plaintiff's Diligence: The plaintiff brought this motion in a diligent maimer, filing just over a month after this Court denied their motion for a preliminary injunction.
Sufficiency of the Plaintiff's Reasons for Dismissal: The plaintiff's stated reason for dismissal without prejudice is insufficient. ASE asserts "that the interests of justice, including conservation of judicial and government resources, would be best served by allowing ASE to voluntarily dismiss the instant action without prejudice." Pl.'s Mot. Supp. Voluntary Dismissal, at 3. The Court notes, however, that the plaintiff presses the importance of bringing the present motion after the denial of its motion for a preliminary injunction. While the plaintiff's desire to conserve judicial resources is appropriate, it may also indicate a concern about the plaintiff's likelihood of success on the merits of the litigation. Voluntary dismissal should be refused "when a plaintiff seeks to circumvent an expected adverse result." Radiant Tech. Corp. v. Electrovert USA Corp., 122 F.R.D. 201, 203-04 (N.D. Tex. 1988) (citing as example Williams v. Ford Motor Credit Co., 627 F.2d 158, 160 (8th Cir. 1980)).
During the hearing on the motion for dismissal pursuant to Fed.R.Civ.P. 41(a)(2), the plaintiff expressed concern about the potential effect of a dismissal with prejudice on the plaintiff's separate, pending action against EG G.
Effort, Expense and Extent of Progress: At the time of filing the motion to dismiss without prejudice, approximately nine months had passed in the course of the litigation, expedited discovery had been conducted and an evidentiary hearing had been completed. A considerable amount of time and effort was expended on behalf of all the parties in this case. A motion to dismiss without prejudice this far along in this litigation is inappropriate. See Puerto Rico Maritime Shipping Auth. v. Leith, 668 E.2d 46, 50 (1st Cir. 1981) (stating that a motion under Fed.R.Civ.P. 41(a)(2) should not be granted if the defendant will suffer legal prejudice).
The defendant and intervenor suggest that conditions, such as the payment of fees and costs, could be imposed upon the plaintiff and thereby make the motion acceptable. The plaintiff, however, resists this condition. ASE's motion for dismissal without prejudice ought to be construed as one based solely upon those conditions stated in the motion. This Court should not impose additional conditions; to do so would be equivalent to involuntary dismissal. See Kienitz v. Metropolitan Life Ins. Co., 131 F.R.D. 106, 107 (E.D. Mich. 1990); 9 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2366, at 303-04 nn. 4, 5 (2d ed. 1995 Supp. 1999); see also Puerto Rico Maritime Shipping Authority, 668 F.2d at 51 (concluding the imposition of costs and fees are not always necessary for dismissal under Fed.R.Civ.P. 41(a)(2)). Likewise, it would be inappropriate to dismiss this action with prejudice under Fed.R.Civ.P. 41(a)(2) without the consent of the plaintiff. See U.S. v. 266 Tonawanda Trail, 95 F.3d 422, 425 (6th Cir. 1996) (citing cases).
For these reasons the motion to dismiss without prejudice is DENIED.