Case No. 02-4167-JAR
February 5, 2003
MEMORANDUM AND ORDER DENYING REMAND AND GRANTING PLAINTIFF'S MOTION TO DISMISS
Plaintiff instituted this action in the District Court of Washington County, Kansas, stating claims of malicious prosecution, conspiracy, deprivation of equal protection and defamation. Defendant filed a Notice of Removal to this Court on October 22, 2002, (Doc. 1) claiming that this Court has diversity jurisdiction because Plaintiff is a resident of the State of Nebraska and Defendant is a resident of the State of Kansas. Defendant further claims that by Plaintiff withdrawing his notice of claim under K.S.A. § 12-105b, no state law claims remain, such that all of Plaintiff's claims are federal claims, over which this Court has jurisdiction by virtue of 28 U.S.C. § 1331. On December 10, 2002, Plaintiff filed, pro se, an "Objection to Removal, Motion for Hearing on Case Venue and Jurisdiction (Doc. 6); and on November 25, 2002, Plaintiff filed a Motion to Put in Abeyance or in the Alternative Dismiss Without Prejudice. (Doc. 4). On January 27, 2003, Plaintiff filed a Motion to Dismiss Without Prejudice or in the Alternative Withdraw (Doc. 13); a Motion for Change of Venue (Doc. 10); a Motion for a Change of Jurisdiction (Doc. 11); and a Motion for Hearing on issues of venue, jurisdiction, conflicts of interest between Defendant and his representative, the mailing address of Plaintiff, and the Motion to Dismiss or Withdraw without prejudice (Doc. 14). In this Motion for Hearing, Plaintiff urges this Court to rule on his pending motions and asserts that he "will not respond nor comply to your orders, demands, or request" until a hearing is conducted. (Doc. 14 at ¶ 19). He demands that this court either dismiss the case without prejudice or hold a hearing to rule on his motions. (Doc. 14 at ¶ 19).
Objection to Removal
Plaintiff objects to this case being removed to this Court on the basis, inter alia, that ". . . Plaintiff finds NO Federal law in the original petition cited as the bases of his claim . . ." and "Plaintiff now claims a residence in Kansas."
The Court finds that Plaintiff's complaint states in pertinent part that he ". . . is a domiciliary resident of Gage County, NE" with principal place of residence in Beatrice, Nebraska, and that the defendant resides in Washington County, Kansas. Plaintiff prays for actual, punitive and/or compensatory damages in a "fair and reasonable" but unspecified amount. Plaintiff's complaint includes claims of violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and violations of the First Amendment of the United States Constitution, as well as violations of the Kansas Constitution.
Based on these averments and claims, the Court finds that it has subject matter jurisdiction. Plaintiff's claims for constitutional violations confer subject matter jurisdiction on the Court, because this Court has original jurisdiction over all civil actions arising under the constitution, laws or treaties of the United States pursuant to 28 U.S.C. § 1331; and removal is therefore proper under 28 U.S.C. § 1441. A civil action is removable only if a plaintiff could have originally brought the action in federal court.
The Court cannot find, on this record, that it has diversity jurisdiction. There is no dispute that at the time Plaintiff filed his complaint in state court, there was diversity of parties. Plaintiff's complaint states that he is a resident of Nebraska and that the defendant is a resident of Kansas. Although Plaintiff has now filed a motion objecting to removal, which states that he is now a resident of Kansas, as the Tenth Circuit noted in Laughlin v. Kmart Corp., jurisdiction is determined at the time of the notice of removal, not at some later time. But, with respect to the amount in controversy, because Plaintiff does not specify the amount in controversy in his complaint, the Court must consider the allegations in the notice of removal, since the allegations in the complaint are not dispositive, and since the burden is on the party requesting removal to demonstrate that the court has jurisdiction. Defendant does not address the amount in controversy in his Notice of Removal. Thus, the Court cannot determine the amount in controversy at the time of the notice of removal, as required.
Laughlin, 50 F.3d at 873 (citing Lonnquist v. J.C. Penney Co., 421 F.2d 597, 599 (10th Cir. 1970)).
Motion to Withdraw or Dismiss Without Prejudice
Plaintiff further moves to "withdraw" this action, or dismiss this action without prejudice, "[b]ecause of the emotional stress unwarrantedly placed on me I can not deal with this at this time and need time to recover for the stress of the criminal trial that I was acquitted of all charges." (Doc. 13, ¶ 2). On December 10, 2002, Plaintiff also filed a Motion for a Hearing on Case Venue and Jurisdiction and an Objection to Removal (Doc. 6).
Plaintiff has refused to participate in the prosecution of this case. As set out in a Scheduling Order (Doc. 7) entered by Magistrate Judge Humphreys, Plaintiff did not appear, in person or through counsel at a planning conference, nor at the scheduling conference held by Judge Humphreys on January 6, 2003. Plaintiff notified defense counsel by voice mail message that he preferred to have no direct contact with defense counsel. Plaintiff had also refused to participate in the planning meeting preceding the scheduling conference. Nor did plaintiff appear at a planning conference.
Generally, a court should grant a voluntary dismissal unless it finds that such a dismissal would cause "legal prejudice" to the defendant. To determine "legal prejudice," the Tenth Circuit employs factors that include "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 the litigation."
E.g., McCoy v. Whirlpool Corp., 204 F.R.D. 471, 472 (D.Kan. 2001).
Id. at 473 (quoting Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997)).
Conditions should be imposed only to alleviate any prejudice that a defendant would suffer upon refiling the action. Defendant did not file a timely opposition to Plaintiff's motion to dismiss. Pursuant to D. Kan. Rule 7.4, the court has discretion to treat the Plaintiff's motion as uncontested. Since the motion is uncontested, the only real issue is over the terms and conditions of the dismissal. The Court finds that the defendant will not suffer prejudice if the case is dismissed without prejudice.
McCoy v. Whirlpool Corp., 204 F.R.D. 471, 472-73 (D.Kan. 2001); Gonzales v. City of Topeka, 206 F.R.D. 280, 282-83 (D.Kan. 2001). The rule is designed to "prevent voluntary dismissals which unfairly affect the other side." Id. at 283 (quoting Nunez v. IBP, Inc., 163 F.R.D. 356, 358 (D.Kan. 1995) (quoting Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993))).
IT IS THEREFORE ORDERED that Plaintiff's Objection to Removal is Overruled and DENIED.
IT IS FURTHER ORDERED that Plaintiff's Motion to Dismiss Without Prejudice is GRANTED.
IT IS SO ORDERED.