Kern v. TXO Production Corp.

1 Citing brief

  1. Adams et al v. United Services Automobile Association et al

    RESPONSE

    Filed June 15, 2016

    This is vividly illustrated by the Eighth Circuit’s decision in Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 1984), a case quoted at length and with approval in Thatcher, 659 F.3d at 1213. Kern upheld the grant of a Rule 41(a)(2) motion filed for the purpose of Case 2:14-cv-02013-PKH Document 72 Filed 06/15/16 Page 12 of 29 PageID #: 2232 6 avoiding an adverse decision and potentially seeking a more favorable forum in state court. In Kern—in the middle of trial, just 15 minutes after the court informally indicated that it would “more than likely direct a verdict in favor of the defendant” (Kern, 738 F.2d at 970)—plaintiff’s counsel successfully moved for voluntary dismissal without prejudice pursuant to Rule 41(a)(2), to avoid an adverse decision and be able to refile in state court (which the Eight Circuit found “likely” (id. at 972)). The Eighth Circuit affirmed the dismissal without prejudice (remanding only for entry of an order conditionally imposing costs, if the case were to be refiled), and it declined to condition the dismissal “on a requirement that plaintiff refile, if at all, only in a federal court.”