Opinion
Civ. No: 99-0927, SECTION: "R" (3).
February 18, 2000.
ORDER AND REASONS
Before the Court is the motion of plaintiff, Allen Reed, to dismiss this action without prejudice. Defendants, R B Falcon Drilling USA, Inc., and R B Falcon Management Services, Inc., oppose this motion.
Formerly known as Falcon Drilling Co., Inc.
On March 23, 1999, plaintiff filed this marine personal injury action against the defendants in this Court. Plaintiffs sued the same defendants in the Twenty-Fifth Judicial District Court for the Parish of Plaquemines on March 22, 1999.
Federal Rule of Civil Procedure 41(a)(2) governs plaintiff's motion to dismiss without prejudice. The district court has discretion to grant a motion under Rule 41(a)(2), subject to review on appeal for abuse of that discretion. See Phillips v. Illinois Central Gulf R.R., 874 F.2d 984, 986 (5th Cir. 1989). A court will usually grant a motion to dismiss without prejudice under Rule 41(a)(2), absent evidence that the defendant will suffer clear legal prejudice. See id. The mere prospect of a second lawsuit or the fact that plaintiff may obtain some tactical advantage are insufficient to establish legal prejudice. See Manshack v. Southwestern Elec. Power Co., 915 F.2d 172 (5th Cir. 1990); Templeton v. Nedlloyd Lines, 901 F.2d 1273, 1276 (5th Cir. 1990) ( citing Lecompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976)); Phillips, 874 F.2d at 986 ( citing Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967)). Rather, the Court should consider when in the course of the litigation the plaintiff files the motion to dismiss. See Hartford Accident Indemnity Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990) ("Important in assessing prejudice is the stage at which the motion to dismiss is made."). Thus, in Templeton, the Fifth Circuit found the district court did not abuse its discretion in denying plaintiff's motion to dismiss without prejudice, even though defendant would lose its choice of forum, when the suit was still in the pretrial stages. 901 F.2d at 1275-1276. But see Davis v. Huskipower Outdoor Equipment Corp., 936 F.2d 193, 199 (5th Cir. 1991) (district court did not abuse discretion in denying plaintiffs' motion to dismiss after parties filed numerous pleadings and memoranda, attended conferences, and magistrate issued comprehensive recommendation adverse to plaintiffs); Hartford Accident Indemnity Co., 903 F.2d at 360 (affirming denial of motion to dismiss when several hearings had been held, one defendant had been dismissed on summary judgment, and parties had undertaken significant discovery).
Defendants argue that a dismissal without prejudice will unduly prejudice them because they have been diligently preparing for trial during the past three months, and are ready to proceed to trial on April 24, 2000. However, the record reveals that although this case is set for trial in three months, the parties have not conducted any discovery or filed any pretrial motions. Defendants' investment in this case includes filing answers to the complaint and the complaint of the intervenor, and participating in a brief telephone conference. By contrast, defendants have apparently filed interrogatories and noticed depositions in the more advanced state court proceeding. ( See Pl.'s Mem. Supp. Mot. Dismiss, at 1-2.) Based on these facts, the Court finds that defendants have failed to show that they will suffer clear legal prejudice by a dismissal without prejudice of this case. See, e.g., Haley v. Offshore Petroleum Divers, Inc., 1993 WL 386326, at *1 (E.D. La. Sept. 17, 1993) (defendants failed to show prejudice or undue expense incurred in filing answer, participating in five minute scheduling conference held by telephone, and reviewing routine scheduling order).
For the foregoing reasons, the Court GRANTS plaintiff's motion and hereby DISMISSES this case WITHOUT PREJUDICE.
New Orleans, Louisiana, this 18th day of February, 2000.
MINUTE ENTRY DUVAL, J. February 17, 2000