Case No. 2:03-cv-422.
September 7, 2006
OPINION AND ORDER
This employment-related case was filed by plaintiff Annette Chrissos, a former employee of Giant Eagle Markets. Ms. Chrissos alleges, and Giant Eagle denies, that an atmosphere of sexual harassment caused Ms. Chrissos to resign from her job.
After the case was filed, Ms. Chrissos' attorney withdrew. Protracted proceedings occurred during which Ms. Chrissos represented herself. She then made an oral motion to dismiss without prejudice pursuant to Fed.R.Civ.P. 41(a)(2). Giant Eagle has responded to the motion by asking the Court to dismiss the case with prejudice. For the following reasons, Ms. Chrissos' motion to dismiss without prejudice will be granted but subject to certain conditions outlined below. Giant Eagle's request to convert the dismissal to one with prejudice will be denied.
The Court turns first to the question of whether it has the power to dismiss this case with prejudice in response to Ms. Chrissos' request that the case be dismissed without prejudice. Rule 41 of the Federal Rules of Civil Procedure provides for the voluntary dismissal of a claim at a plaintiff's request. The relevant portion of Rule 41 states:
By Order of the Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. * * * Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
Fed.R.Civ.P. 41(a)(2). Implicitly, the last sentence of Rule 41(a)(2) allows a court to dismiss the action either "with prejudice" or "without prejudice." United States v. One Tract of Real Property, 95 F.3d 422, 425(6th Cir. 1996) (citingJaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995); Choice Hotels Int'l, Inc. v. Goodwin Boone, 11 F.3d 469, 471 (4th Cir. 1993); Andes v. Versant Corp., 788 F.2d 1033, 1037 (4th Cir. 1986)).
Despite this interpretation of Rule 41(a)(2), a trial court may not dismiss an action with prejudice in response to a plaintiff's request to dismiss without prejudice without providing the plaintiff notice of the Court's intent to dismiss the case with prejudice, the opportunity to be heard on that intent, and the opportunity to withdraw the motion to dismiss and to continue the litigation as an alternative to a dismissal with prejudice. Specifically, the Sixth Circuit Court of Appeals has stated:
First, the district court must give the plaintiff notice of its intention to dismiss with prejudice. Jaramillo, 59 F.3d at 79; Andes, 788 F.2d at 1037. Second, the plaintiff is entitled to an opportunity to be heard in opposition to dismissal with prejudice. Jaramillo, 59 F.3d at 79; Andes, 788 F.2d at 1037. Third, the plaintiff must be given an opportunity to withdraw the request for voluntary dismissal and proceed with the litigation. Jaramillo, 59 F.3d at 79; Marlow, 19 F.3d at 305; Gravatt v. Columbia Univ., 845 F.2d 54, 56 (2d Cir. 1988). This third requirement is essential because, unlike a dismissal without prejudice, a dismissal with prejudice operates as a rejection of the plaintiff's claims on the merits and res judicata precludes further litigation. Jaramillo, 59 F.3d at 79.One Tract of Real Property, 95 F.3d at 425-26; see also O'Hara v. Bd. of Ed. of Brooklyn City School Dist., 72 Fed.Appx. 311, 315 (6th Cir. 2003); Perkins v. MBNA America, 43 Fed.Appx. 901, 902 (6th Cir. 2002). Once these three safeguards are satisfied, the Court must then determine whether granting the plaintiff's motion to dismiss without prejudice will cause the defendants to suffer "plain legal prejudice" as opposed to facing the mere prospect of a second lawsuit. See, e.g., Grover v. Eli Lilly Co., 33 F.3d 716 (6th Cir. 1994); Jones v. Lemke, No. 97-2350, 1999 WL 107984 (6th Cir. Feb. 9, 1999). If so, dismissal with prejudice may be appropriate.
In One Tract of Real Property, the Court of Appeals reversed the district court's decision to change a motion to dismiss without prejudice to a motion to dismiss with prejudice. The Court, citing the three safeguards, supra, observed that the government was never given the opportunity to withdraw its motion to dismiss and proceed on the merits. The Court stated:
However, we need not decide whether the government received proper notice of whether it had an opportunity to be heard, because we conclude that the District Court abused its discretion when it did not give the government the opportunity to withdraw its motion to dismiss. The District Court's action denied the government the option of trying its case on the merits in that or any other proceeding.One Tract of Real Property, 95 F.3d at 426.
The issue raised by Giant Eagle's response to Ms. Chrissos' motion is the same issue addressed in One Tract of Real Property. Here, Giant Eagle requests the Court to change Ms. Chrissos' motion to dismiss without prejudice to a motion to dismiss with prejudice. However, none of the safeguards established in One Tract of Real Property have been satisfied. Put simply, Ms. Chrissos has not been advised by the Court that it is considering a dismissal with prejudice, and she has not been given the opportunity to withdraw the request for voluntary dismissal and proceed with the litigation as an alternative to a dismissal with prejudice. Thus, in the present posture of the case, the Court simply may not grant Ms. Chrissos' motion but convert the dismissal to one with prejudice.
This case is factually distinguishable from the cases that Giant Eagle relies on in its motion, Grover and Bowles v. City of Cleveland, 129 Fed.Appx. 239 (6th Cir. 2005). In Grover, the Court of Appeals concluded that the district court abused its discretion by granting the plaintiff's motion to dismiss without prejudice because, inter alia, prior to the case being dismissed, a ruling from the Ohio Supreme Court indicated that the plaintiffs had no opportunity to succeed on the merits. The Court concluded that "[a]t the point when the law clearly dictates a result for the defendant, it is unfair to subject him to continued exposure to potential liability by dismissing the case without prejudice." Grover, 33 F.3d at 719 (citing Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 1984);Phillips v. Illinois Cent. Gulf R.R., 874 F.2d 984, 987 (5th Cir. 1989); Ikospentakis v. Thalassic S.S. Agency, 915 F.2d 176 (5th Cir. 1990). Further, this Court notes that the Grover court proceeded directly to the "plain legal prejudice" analysis, which likely indicates that satisfying the safeguards established in One Tract of Real Property was not an issue in that case.
Unlike Grover, there is no intervening case law that would dictate a favorable result for Giant Eagle. Additionally, the issue of whether Ms. Chrissos was provided the One Tract of Real Property safeguards is important in this case. As indicated, supra, Ms. Chrissos was not provided notice and the opportunity to be heard and proceed with her case in light of Giant Eagle's request to dismiss the case with prejudice. Thus, Grover is factually distinguishable from the facts at hand.
The court also finds Bowles distinguishable. In Bowles, the Sixth Circuit Court of Appeals affirmed a trial court's decision to dismiss because of the plaintiff's failure to appear and prosecute the lawsuit. The obvious distinction between this case and Bowles is that the instant motion, and Giant Eagle's response, do not raise the issue of failure to prosecute. Rather, this case concerns a voluntary motion to dismiss without prejudice filed by the plaintiff, Ms. Chrissos. Accordingly,Bowles is neither persuasive or relevant.
The Court next turns to the question of whether, as a sound exercise of its discretion, it should allow Ms. Chrissos to dismiss the case without prejudice, thus preserving the right to refile the case in the future if it is not barred by other factors such as the statute of limitations. For the following reason, the Court concludes that its discretion should be exercised in favor of such dismissal.
As noted above, the Court can consider (but not order sua sponte) dismissing an action with prejudice in response to a Rule 41(a) motion if a dismissal without prejudice would result in clear legal prejudice to the defendant. Although this case has been pending for some time, no significant rulings on the merits have been made. No trial has commenced, and there is no indication that any of the work performed by counsel for Giant Eagle would have to be replicated were the case to be refiled. All of the discovery taken should be applicable to the case if it were refiled. By imposing a single condition, described below, any prejudice that might result from a re-filing of this case would be cured. The Court therefore imposes the following condition to its grant of Ms. Chrissos' motion for voluntary dismissal.
If the case is re-filed, the case must be reinstated from its current posture. See, e.g., Duffy v. Ford Motor Co., 218 F.3d 623, 633 (6th Cir. 2000) ("Under appropriate circumstances, we believe that it would not be an abuse of discretion for the district court to grant a voluntary dismissal on the condition that all rulings from the original action carry over to the re-filed action"). All pending motions and judicial rulings, which include, inter alia, Giant Eagle's pending motion for summary judgment, will be reinstated, and the case will proceed from that point forward. This condition is designed to insure that there will be no duplication of legal fees occasioned by any refiling. Ms. Chrissos should also be aware that the Court may, if appropriate, impose costs from this action (but not attorneys' fees, see Rogers v. Wal-Mart Stores, 230 F.3d 868 (6th Cir. 2000)) as the Court deems proper. See Fed.R.Civ.P. 41(d). The Court is not conditioning its dismissal order on the payment of any costs, however, but leaves that issue open if the case is refiled.
Based on the foregoing, Ms. Chrissos' oral motion to dismiss without prejudice is GRANTED subject to the condition outlined above. The Clerk is directed to terminate this case.