Civil No. 2-01-CV-970.
June 23, 2005
This matter comes before the court on Plaintiff's Motion to Dismiss pursuant to Rule 41(a)(2) F.R.Civ.P., filed November 13, 2003. [Docket No. 71]. Plaintiff seeks dismissal of "this action," indicating that the dismissal as to defendants Brewer and Stewart would be with prejudice. Defendants Winchester and Lybbert are not mentioned by name in the Motion to Dismiss, or in Plaintiff's Memorandum in support of the Motion to Dismiss. [Docket No. 72]. In his Memorandum, Plaintiff stated:
Inasmuch as this court has deferred this action pending proceedings before the Judicial Conduct Commission and the Supreme Court of the State of Utah, and the Utah Supreme Court is hearing the constitutional issues raised by Judge Anderson at Oral Argument on November 19, 2003 . . . and based on the request for dismissal of certain parties with prejudice, this court should impose no conditions.
All defendants responded to Plaintiff's Motion for Voluntary Dismissal. Defendant Stewart joined in the Motion to Dismiss with Prejudice as against him, agreeing that each party would bear his own costs and attorney fees. [Docket No. 73]. Defendant Brewer agreed to the Dismissal with Prejudice, provided that a mutual release of claims be executed by Plaintiff and by her. In the absence of such a release, she requested that the dismissal be conditioned on the award of costs and attorneys fees. Defendants Winchester and Lybbert, interpreting Plaintiff's Motion to Dismiss as including them, agree to the dismissal provided it be with prejudice, or alternatively if without prejudice, that they be awarded costs and fees. [Docket No. 74].
Proceedings in this action were stayed pending completion of proceedings before the Utah Judicial Conduct Commission and the Utah Supreme Court. [Docket Nos. 48, 61]. Those proceedings were concluded as of January 2004, when the Utah Supreme Court rendered its decision. In re Anderson, 82 P.3d 1134 (Utah 2004).
The Utah Supreme Court rejected the sanction recommended by the Utah Judicial Standards Commission, that Plaintiff Anderson be given a public reprimand for engaging in conduct prejudicial to the administration of justice which brought a judicial office into disrepute. The Utah Supreme Court found that Plaintiff Anderson's behavior had been so prejudicial to the administration of justice as to justify and require his removal from office. In re Anderson, 82 P.3d at 1138, 1153.
On May 6, 2005, this court requested that the parties supplement their briefing on the issues raised in Plaintiff's Motion to Dismiss. [Docket No. 88]. Plaintiff acknowledged that Defendants Winchester and Lybbert interpreted the Motion as applying to them as well. [See Docket 90, ¶ 5]. Plaintiff requested an extension of time to submit supplemental briefing as requested by this court, and on other pending matters. A short extension was granted, and the parties were instructed to limit their briefing to issues raised in the pending Motion to Dismiss. Plaintiff has not provided the court with any additional authority or argument, nor has he in any way indicated that he did not originally intend to include Defendants Winchester and Lybbert in his Motion to Dismiss. Defendants Winchester and Lybbert filed a memorandum brief indicating that the claims against them should be dismissed with prejudice on substantive grounds inasmuch as no relief could be granted by this court on Plaintiff's declaratory judgment and permanent injunction claims, and because the claims against them are barred by the doctrine of preclusion. [Docket No. 92]. They request an award of fees and costs, but state they will forego any such claim if the matter against them is dismissed with prejudice. Defendant Stewart joins with Defendants Winchester and Lybbert, seeking dismissal on the doctrine of preclusion. [Docket No. 93].
Dismissal under Rule 41(a)(2) F.R.Civ.P. is within the sound discretion of the court. Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993), Vol. 8, Moore's Federal Practice, § 41.40 (Matthew Bender 3rd ed.). In exercising that discretion, the court shall take into account the purpose of Rule 41(a)(2) which is designed "permit the plaintiff to dismiss the action while avoiding prejudice to the defendant through imposition of curative conditions." Vol. 8, Moore's Federal Practice § 41.40.
As stated in County of Santa Fe, New Mexico vs. Public Service Company of New Mexico, 311 F.3d 1031, 1047-1048 (10th Cir. 2002):
When considering a motion to dismiss, "the important aspect is whether the opposing party will suffer prejudice in the light of the valid interests of the parties. It is the prejudice to the opposing party, rather than the convenience of the court, that is to be considered in passing on a motion for dismissal." (citation, quotations and alterations omitted); see also Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997) ("Absent `legal prejudice' to the defendant, the district court normally should grant such a dismissal."). Among the factors to be considered by the district court in making this evaluation are: "the opposing party's effort and expense in preparing for trial; excessive delay and lack of diligence on the part of the movant; insufficient explanation of the need for a dismissal; and the present stage of litigation." Ohlander, 114 F.3d at 1537. This list of factors "is by no means exclusive," and factors that are "unique to the context of the case" must also be considered. Id. In reaching its conclusion, "[t]he district court should endeavor to insure substantial justice is accorded to both parties," and therefore the court "must consider the equities not only facing the defendant, but also those facing the plaintiff." Id.
I recommend that the Motion to Dismiss with Prejudice as against Defendants Brewer and Stewart be granted, with all parties bearing their own costs. This matter has been stayed for most of its tenure, with little or no discovery undertaken. (See Docket Nos. 34-44, 46-48). Although Plaintiff failed to actively pursue this matter following the decision of the Utah Supreme Court, no defendant incurred fees or costs due that lack of diligence. Finally, the interests of Defendants Brewer and Stewart are protected, in that they will obtain a judgment on the merits vindicating their rights and precluding any future suit against them by Plaintiff. See County of Santa Fe v. Public Service Co. of N.M., 311 F.3d at 1049.
I recommend that the Motion to Dismiss as to Defendants Winchester and Lybbert, as framed by the Plaintiff, be granted without prejudice, with an award of costs and fees. Defendants Winchester and Lybbert clearly placed Plaintiff on notice that they interpreted his Motion to Dismiss as addressing the claims made against them. The inexact language used by Plaintiff in his Motion to Dismiss supports their understanding, and Plaintiff has never argued to the contrary although certainly given the opportunity to do so by this court. Because a dismissal without prejudice will not necessarily foreclose future action by Plaintiff against Defendant Winchester and Lybbert, it is appropriate to condition such dismissal upon an award of costs and fees. See Arerotech, Inc. v. Estes, 110 F.3d 1523, 128 (10th Cir. 1997).
Should Plaintiff reject the terms and conditions attendant to the Order for Dismissal without Prejudice as to Defendants Winchester and Lybbert, I recommend that he be allowed to convert the Motion into a Motion to Dismiss with Prejudice. In that event, I recommend that Motion be granted with each party to bear their own costs. Alternatively, if Plaintiff elects to withdraw his Motion to Dismiss as to Defendants Winchester and Lybbert in its entirely, I recommend that the court deem Defendant Winchester and Lybbert's supplemental memorandum (Docket No. 92) as a Motion to Dismiss on the substantive grounds stated therein, and set a further briefing schedule related to that Motion.
Plaintiff shall have 15 days after the date of entry of this Order to advise the court as to which election he chooses to make with regard to the Motion to Dismiss as to Defendants Winchester and Lybbert.