Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD PEGGY HOLLIDAY COX, AS EXECUTRIX
OF THE ESTATE OF RAYMOND MOYER COX,
Plaintiff,
v. CIVIL ACTION NO. 1:21-00508
SHERMAN W. BOYD, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff's motion, pursuant to Federal Rule of Civil Procedure 41(a)(2), to dismiss this case
without prejudice. For the reasons below, that motion is
GRANTED .
I. This case arises out of a fatal motor vehicle accident occurring on June 29, 2020. According to the Complaint, a tanker
truck owned by Gas Field Services, LLC and driven by Sherman W.
Boyd struck the rear of a Jeep that Raymond Moyer Cox was driving
on Interstate 77 in Mercer County, West Virginia. Cox was killed
in the accident.
On September 8, 2021, plaintiff, the Executrix of Cox’s Estate, filed the instant lawsuit setting forth claims of
negligence against Boyd and vicarious liability as to Gas Field
Services. Plaintiff filed her case in federal court based upon
diversity of citizenship.
In their Answer, filed on October 25, 2021, defendants raised certain defenses that the State of West Virginia was
solely or partially responsible for the accident because of
highway maintenance on Interstate 77 at the time of the accident.
Plaintiff wishes to assert negligence claims against the West
Virginia Parkways Authority ("WVPA"). However, she is unable to
add the WVPA as a defendant in this lawsuit because WVPA would be
a diversity-destroying defendant, divesting the court of
jurisdiction.
Defendants oppose dismissal without prejudice. II.
Rule 41(a)(2) of the Federal Rules of Civil Procedure provides:
Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. . . . Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
The district court is vested with discretion as to whether to
grant a dismissal under Rule 41(a)(2) and its order will not be
disturbed absent an abuse of discretion. See Davis v. USX
Corporation,
Versant Corp.,
purpose of Rule 41(a)(2) is freely to allow voluntary dismissals
unless the parties will be unfairly prejudiced.” Davis, 819 F.2d
at 1270. According to our appeals court, “a plaintiff’s motion
for voluntary dismissal without prejudice should not be denied
absent plain legal prejudice to the defendant.” Francis v.
Ingles,
Factors a district court should consider in ruling
on such motions are: (1) the opposing party's
effort and expense in preparing for trial; (2)
excessive delay or lack of diligence on the part
of the movant; (3) insufficient explanation of the
need for a dismissal; and (4) the present stage of
the litigation, i.e., whether a motion for summary
judgment is pending. These factors are not
exclusive, however, and any other relevant factors
should be considered by the district court
depending on the circumstances of the case.
Courts generally agree, however, that the mere
prospect of a second lawsuit is not sufficient
prejudice to justify denying a motion for
voluntary dismissal. Similarly, “the possibility
that the plaintiff will gain a tactical advantage
over the defendant in future litigation will not
serve to bar a second suit.” Davis v. USX Group,
(unpublished) (internal citations omitted). A district court’s
decision to grant a motion for voluntary dismissal without
prejudice is reviewed for an abuse of discretion. Ellet Bros.,
Inc. v. U.S. Fidelity & Guar. Co.,
2001).
After considering the foregoing factors, the court finds that the case should be dismissed without prejudice. The first
and fourth factors clearly weigh in favor of dismissal without
prejudice. This case is in its infancy. With the exception of
initial disclosures, no discovery has taken place and defendants
have not filed a motion for summary judgment. See, e.g., Wellin
v. Wellin, No. 2:13-cv-1831-DCN,
22, 2014) (finding dismissal without prejudice appropriate where
parties had conducted no discovery and the only pending
dispositive motion was one for judgment on the pleadings).
Indeed, in other cases where the Fourth Circuit has found a
district court did not abuse its discretion in denying a
plaintiff’s motion for voluntary dismissal, the cases had
advanced far beyond the instant case. See, e.g., Howard v. Inova
Health Care Services,
*11-12 (4th Cir. Dec. 5, 2008) (affirming denial of voluntary
motion to dismiss without prejudice where motion was filed two
weeks before trial and parties had completed discovery); Francis
v. Ingles,
district court's denial of motion to dismiss without prejudice
because the “plaintiff's motion came after a lengthy discovery
period and merely one week before the scheduled trial date” and
because “the motivation for the motion appeared to be to
circumvent” a discovery ruling, which counsel could have avoided
“by deposing the witness within the discovery period”); Andes v.
Versant Corp.,
court did not abuse its discretion in denying plaintiff’s motion
for voluntary dismissal without prejudice where defendants
incurred significant expenses in discovery and filing motion for
summary judgment).
The second factor also weighs in favor of granting plaintiff’s motion. The court does not agree with defendants’
assessment that plaintiff has exhibited a lack of diligence. In
her reply, plaintiff discusses the steps she took to proceed
against WVPA. See ECF No. 23 at 3 n.2. Shortly after receiving
defendants’ Answer, on November 15, 2021, plaintiff contacted
defendants’ counsel in an effort to secure their agreement to
stipulate to dismissal of this action without prejudice. See id.
Only after those discussions were unsuccessful did plaintiff file
the instant motion to dismiss less than a month later. See id.
As to the third factor, i.e., plaintiff’s explanation for the need for a voluntary dismissal, the court concludes that her
explanation is adequate. She seeks to add WVPA as a defendant,
something she would be unable to do in this court. Therefore,
dismissal of this lawsuit is appropriate so that plaintiff can
proceed against all defendants in one lawsuit. Keeping in mind
that “the prospect of a subsequent lawsuit does not constitute
prejudice for purposes of Rule 41(a)(2)[,]” Ellett Bros., 275
F.3d at 388-89, the court finds that plaintiff has provided an
adequate explanation regarding her motion for voluntary
dismissal.
David A. Faber Senior III.
Based on the foregoing, the court finds that defendants will not suffer substantial prejudice if the court grants
plaintiff’s motion to dismiss this case without prejudice.
Accordingly, plaintiff's motion is GRANTED .
The Clerk is directed to forward a copy of this Memorandum Opinion and Order to counsel of record and
unrepresented parties.
IT IS SO ORDERED this 25th day of January, 2022. ENTER: