Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
F. DYANN MCDOWELL, et al., :
:
Plaintiff, : Case No. 2:23-cv-02860
:
v. : Judge Algenon L. Marbley
:
THE BOARD OF TRUSTEES FOR : Magistrate Judge Kimberly A. Jolson PERRY TOWNSHIP, STARK COUNTY, :
OHIO, et al . , :
Defendants. :
OPINION & ORDER
This matter is before this Court on Plaintiff’s Motion to Dismiss All Federal Claims and Remand Case to State Court (“Motion”). (ECF No. 46). For the reasons set forth below, the Motion is GRANTED in part and DENIED in part .
I. BACKGROUND
In August 2023, Plaintiffs F. Dyann McDowell (“McDowell”) and Training Marbles, Inc. (“TMI”) filed a complaint in the Court of Common Pleas in Franklin County, Ohio. (ECF No. 2). The case arises from Defendant Perry Township entering into a service agreement to retain TMI to conduct a human resources assessment. ( Id . ¶ 17). Allegedly, before the assessment there were concerns that Defendant Michael T Pomesky, former Perry Township Chief of Police, retaliated against others. ( Id . ¶ 23).
During the assessment, McDowell interviewed Perry Township employees, and some allegedly expressed concerns about potential retaliation by Pomesky if the employee participated in the interview. ( Id . ¶¶ 22, 24). Plaintiffs state McDowell notified Perry Township of her concerns about Pomesky, and Perry Township signed an agreement for TMI to investigate Pomesky. ( . ¶¶ 31, 32). McDowell told Pomesky she was notified that a LEADS, a confidential system used by *2 law enforcement to run checks on people, was pulled on her. (ECF No. 34 at 13–14). Pomesky claims he felt obligated to investigate because unauthorized inquiries lead to terminations, suspensions, and felony charges. (ECF No. 32 at 154, 168–69). The investigation was marked as non-criminal. (ECF Nos. 2 ¶ 45; 35 at 7).
Pomesky continued the investigation on McDowell, concluded McDowell’s report was false, and took his complaints to the local prosecutor who found probable cause existed for falsification and obstruction of justice. (ECF Nos. 2 ¶¶ 45, 46; 35 at 7). Pomesky’s investigation led to charges against McDowell for misdemeanor falsification and obstructing official business and an arrest warrant for McDowell’s arrest on August 10, 2022. (ECF Nos. 2 ¶ 51). McDowell turned herself in and spent 36 hours incarcerated at the Franklin County Corrections Center. ( Id . ¶ 66). The charges were eventually dismissed in McDowell’s favor. ( Id . ¶ 53). McDowell was released on August 12, 2022. ( Id . ¶ 68).
On August 16, 2022, Pomesky was allegedly placed on administrative leave in part because of McDowell’s arrest. ( Id . ¶69). Pomesky remained on leave until his employment was terminated by the Perry Township police in October 2022. ( . ¶ 71).
Plaintiffs bring eleven claims against Defendants the Board of Trustees for Perry Township and Pomesky. The claims are for false arrest under § 1983 and Ohio law and malicious prosecution under § 1983. Plaintiffs also bring the “alternate” claim of abuse of process against Pomesky. Other state law claims include a claim for intimidation , intentional infliction of emotional distress, negligent retention/supervision, breach of contracts, civil liabilities for criminal acts under Ohio law, and Monell claims. (ECF No. 2).
The case was removed by Defendant Pomesky on September 5, 2023, for federal question jurisdiction. (ECF No. 1). On September 25, 2023, Defendants moved to transfer venue to the *3 Northern District of Ohio. (ECF No. 9). Plaintiffs opposed and the motion was denied. (ECF Nos. 13; 18).
A Preliminary pretrial order was entered making discovery due by March 29, 2024, and dispositive motions due by April 26, 2024. ( ECF No. 12). On March 7, 2024, Pomesky filed a joint motion for extension which was granted and pushed the discovery deadline to May 29, 2024, and dispositive motions deadline to June 28, 2024. (ECF Nos. 20; 21). On June 27, 2024, another joint motion to extend dispositive motion deadlines was filed and granted. (ECF Nos. 26; 27). The dispositive motion deadline was set for July 12, 2024. (ECF No. 27).
On July 12, 2024, Defendants filed their motions for summary judgment. (ECF Nos. 30; 33; 35). Plaintiffs requested extensions of time to respond with the latest deadline being August 30, 2024. (ECF Nos. 39; 44).
On August 28, 2024, Plaintiffs filed the Motion, requesting dismissal of the federal claims and remand. (ECF No. 2). The claims Plaintiffs seek to dismiss are:
• Claim One for False Arrest under 42 U.S.C. § 1983;
• Claim Three for Malicious Prosecution under 42 U.S.C. § 1983; and • Claim Eleven seeking to hold Defendant The Board of Trustees for Perry Township, Stark, County, Ohio liable for Claim One and Claim Three under Monell and 42 U.S.C. § 1983. (ECF No. 46-1). Only Defendant Pomesky opposed the Motion. (ECF No. 51).
II. STANDARD OF REVIEW
Plaintiffs seek voluntary dismissal of the federal claims without prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(2). Rule 41(a)(2) provides that “an action may be dismissed
at the plaintiff's request only by court order, on terms that the court considers proper.” It is within
the court’s “sound discretion” to grant a Rule 41(a)(2) motion for a voluntary dismissal.
Walther
*4
v. Fla. Tile, Inc
.,
Dismissal without prejudice is appropriate unless “the defendant would suffer plain legal prejudice . . . as opposed to facing the mere prospect of a second lawsuit.” Walther , 776 F. App'x at 315 (quoting Grover , 33 F.3d at 718). To determine whether the defendant will suffer legal prejudice as a result of dismissal without prejudice, a court should consider: (1) how much effort and expense the defendant has expended in the matter; (2) any lack of diligence on the plaintiff’s part in prosecuting the case; (3) whether the plaintiff has given sufficient explanation of her need to take a dismissal; and (4) whether the defendant has moved for summary judgment (the “ Grover ” factors”). .
Provided a district court has “dismissed all claims over which it had original jurisdiction”
it “may decline to exercise supplemental jurisdiction.” 28 U.S.C. § 1367(c)(3). “When all federal
claims are dismissed before trial, the balance of considerations usually will point to dismissing the
state law claims, or remanding them to state court if the action was removed.”
Basista Holdings,
LLC v. Ellsworth Twp.
,
III. LAW & ANALYSIS
A. Dismissal of Federal Claims
As an initial matter, the Sixth Circuit has recognized that the scope of Rule 41 is “unclear.”
Letherer v. Alger Grp., LLC
,
Also, unlike Rule 41(a)’s dismissal of an “action,” Rule 21 provides that “[p]arties may be
dropped or added by order of the court on motion of any party or of its own initiative at any stage
of the action and on such terms as are just.” Fed. R. Civ. P. 21. Many courts construe motions for
voluntary dismissal of individual defendants or individual claims as a motion to dismiss under
Rule 21.
See, e.g
.,
id. Eng. v. Equifax Info. Servs., LLC
, No. 1:24-cv-240,
Due to the different approaches to construing Rule 41(a)(2) motions to dismiss individual claims, Plaintiffs’ Motion to Dismiss will be construed as both a Rule 21 motion and a Rule 15 motion seriatim .
1. Rule 15 Amendment
Because the Motion only involves dismissal of claims, not parties, this Court finds applying
Rule 15(a) more compelling.
Compare Letherer v. Alger Grp., LLC
,
Under Rule 15(a), after the defendant has filed a responsive pleading, a plaintiff may only
amend its complaint by leave of court or with the written consent of the defendant. Fed. R. Civ. P.
15(a). Courts “freely give leave when justice so requires.”
Id
. In determining whether to permit
amendment, courts consider undue delay, bad faith or dilatory motive, repeated failure to cure
deficiencies by previous amendments, undue prejudice, and futility of amendment.
Parchman v.
SLM Corp
.,
Plaintiffs have sufficiently shown a lack of prejudice and established good cause to amend
the complaint. Indeed, discovery is over, and summary judgment motions have been file. Courts
generally hold that “allowing amendment months after the close of discovery and after dispositive
motions were filed and briefed” results in “significant prejudice” to the defendant.
See Pittman v.
Experian Info. Sols., Inc.
,
The Motion here involves dismissing claims rather than adding claims or defendants.
Plaintiffs’ motion is based on pleading in the alternative: rather than continue to pursue both
federal and state law claims, Plaintiffs have decided to pursue the abuse of process claim and
request the dismissal of the inconsistent federal claims. (ECF No. 46 at 3). Further, the federal
*8
claims Plaintiffs seek to dismiss from the complaint arise from the same facts as the state law
claims that Plaintiffs wish to continue pursuing. Allowing an amended complaint to dismiss the
claims will only remove the federal basis for Plaintiffs’ relief, it will not result in prejudice.
See,
e.g.
,
Satterwhite v. Ashtabula Cnty. Metroparks
,
This Court also finds an amendment may be granted here when considering any undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by previous amendments, and futility of amendment. Nothing suggests Plaintiffs were the cause of considerable delay or exercised any lack of diligence. Upon review of transcripts and depositions, Plaintiffs made this Motion to conserve further resources. Plaintiffs have not made any other amendments, and, Plaintiff is not adding any new claims, so futility is not at question.
This Court finds Plaintiffs’ Motion to Dismiss, when construed as a Rule 15 motion to amend, should be granted. As noted, however, courts have also construed 41(a)(2) motions to dismiss individual claims as Rule 21 motions. This Court finds it prudent to also analyze Plaintiffs’ Motion as a Rule 21 motion to dismiss and finds the result is the same.
2. Dismissal Under Rule 21
Courts recognize that “[a]lthough Rule 21 expressly concerns ‘severing’ claims. . . Rule 21
gives the Court discretion to both sever and dismiss claims ‘on just terms.’”
Nutter v. Fam. Dollar
Stores of Ohio, LLC
, No. 4:23-CV-1985, 2023 WL 9051700, at *2 (N.D. Ohio Dec. 28, 2023)
(quoting
Dix v. Atos IT Sols. & Servs. Inc
., No. 1:18-cv-275,
(1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present some common questions of law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether different witnesses and documentary proof are required for separate claims. The first, second, and fifth factors weigh against granting Plaintiffs’ Motion to dismiss the federal claims. The federal claims and state law claims involve the same underlying facts and common questions of law. The federal claims are § 1983 claims of false arrest and malicious prosecution and Monell liability. The state law claims are similarly for false arrest and abuse of prosecution. (ECF No. 2).
Nonetheless, the third and fourth factors weigh heavily in favor of granting the Motion.
Judicial economy would be facilitated, as Plaintiffs complaint is pled in the alternative. Pomesky
recognizes this in his Motion for Summary Judgment, arguing “McDowell’s own allegations
eliminate her abuse of process claim. McDowell alleges that Chief Pomesky caused her to be
arrested ‘without probable cause’” which is “inconsistent with showing an essential element of an
abuse of process claim—that the legal proceeding was initiated with probable cause.” (ECF No. at
22–23). Plaintiffs recognized the strength of the state law abuse of process claim over the federal
claims and requests that this Court dismiss the federal claims rather than adjudicating them. This
*10
Court has noted that, generally, “alternative claims would need to be dismissed after a favorable
finding on . . . non-alternative claims because the alternative claims could not exist alongside the
non-alternative claims.”
Stewart v. Martin
, No. 3:21-CV-89,
Now, this Court must address the fourth factor, prejudice. Courts recognize that “[a]lthough
Rule 21 expressly concerns ‘severing’ claims. . . Rule 21 gives the Court discretion to both sever
and dismiss claims ‘on just terms.’”
Nutter
, 2023 WL 9051700, at *2 (quoting
Dix
, 2021 WL
1165762, at *4). Applying Rule 41(a) or Rule 21 is thus a distinction without a difference because
“when evaluating a motion for dismissal under Rule 21, courts should consider Rule 41 standards
as guidance for analyzing potential prejudice to the non-movants.”
Stewart
,
This Court, thus, must turn to the four Grover factors used to determine whether the defendant will suffer legal prejudice as a result of dismissal without prejudice.
a. Defendant’s Effort and Expense
The first factor, the extent of Pomesky’s effort and expense here, weighs in Plaintiffs’ favor. Pomesky argued that, at the time of his Opposition, the case had been going on for almost fourteen months, parties completed extensive discovery, parties engaged in mediation and motion *11 practice, and the case was transferred from state court once. (ECF No. 51 at 4). While this is true, Plaintiffs do not seek to dismiss all claims.
When considering the effort and expense of the defendant, it is notable that “the prejudice inquiry under 41(a)(2) is designed to protect defendants who have put considerable time and effort into defending a case, only to have the plaintiff pull the rug out from under them by voluntarily dismissing the action.” When applying Rule 21, this is less of a concern as the whole action will not be dismissed. As Pomesky identifies, only two of the nine claims against him will be dismissed. (ECF No. 51 at 3). Majority of the effort and expense will not be wasted. As a result, this factor favors granting Plaintiffs’ Motion.
b. Plaintiffs’ Delay or Lack of Diligence
As to the second factor, the record does not suggest any delay or lack of diligence by Plaintiffs in prosecuting this case. Pomesky argues that Plaintiffs excessively delayed seeking dismissal and notes that Plaintiffs’ motion was filed after two extensions to respond to the motions for summary judgment. (ECF No. 51 at 4–5). This cannot by itself show lack of diligence in prosecuting the case.
Parties demonstrating excessive delay, for example, fail to comply with court orders or
deadlines.
See e.g
.,
Maldonado v. Thomas M. Cooley L. Sch
.,
In
Maldonado
, the Sixth Circuit held the factors weighed heavily against granting the
voluntary dismissal motion when discovery had closed, except for a deposition.
Maldonado
, 65 F.
*12
App'x at 957. The plaintiff was ordered but failed to appear at the deposition.
Id
. at 956. The court
noted “[t]he defendants were almost certain to move for summary judgment after [the] deposition
was taken.”
Id
. at 957. The court also noted that the plaintiff waited until after judgment on the
pleadings were filed to request dismissal with a convoluted explanation for the request. ( .). In
Smith
, the plaintiff conceded to failing to comply with any of the Court's orders and blamed the
plaintiff’s local counsel. The court found the argument unconvincing and weighed this factor
against the plaintiff.
Smith
,
In contrast, courts may weigh this factor in favor of a plaintiff when nothing suggests that
the plaintiff has not been diligent in pursuing claims. For example, the Sixth Circuit affirmed a
district court’s finding that the delay or lack of diligence factor did not weigh against plaintiffs
when “plaintiffs had not been dilatory in responding to defendants' motions for summary
judgment, in engaging in discovery, or in preparing their case. The district court noted that because
discovery would largely be transferable to the Connecticut action, plaintiffs' delay in filing the
motion to dismiss did not sufficiently prejudice defendant to preclude dismissal.”
Rosenthal v.
Bridgestone/Firestone, Inc
.,
In the case sub judice , nothing on the record suggests excessive delay or lack of diligence on part of Plaintiffs. This case was removed to this Court in September 2023. (ECF No. 1). On July 12, 2024, Defendants filed their motions for summary judgment. (ECF Nos. 30; 33; 35). Plaintiffs requested extensions of time to respond extended the deadline to August 30, 2024. (ECF Nos. 39; 44). Plaintiffs filed the Motion on August 28, 2024. (ECF No. 46). The longer delay however, has been the discovery and dispositive motions. The preliminary pretrial order was entered, and discovery was due by March 29, 2024, and dispositive motions due by April 26, 2024. (ECF No. 12). Pomesky filed two joint motions for extension which were granted. (ECF Nos. 20; 26). Discovery was pushed to May 29, 2024, and dispositive motions by July 12, 2024. (ECF Nos. 21; 27).
There is no evidence, and defendants do not argue, that leading up to this Motion, Plaintiffs
have been “dilatory in responding[,] . . . in engaging in discovery, or in preparing their case.
Rosenthal
,
c. Explanation for Dismissal
Turning to the third factor, this Court finds Plaintiffs have given sufficient explanation of the need to take dismissal. Plaintiffs explain seeking dismissal of the federal claims due to their complaint pleading in the alternative. The federal claims and the abuse of process claims are inconsistent. Plaintiffs prefer to focus on its strongest claims, the state law claims, and realized the need to take this approach after reviewing transcripts of recent depositions. (ECF No. 46 at 3).
Pomesky maintains this explanation is insufficient and Plaintiffs’ Motion is an attempt at
forum-shopping. (ECF No. 51 at 3). Pomesky argues Plaintiffs seek dismissal to avoid binding
precedent impacting Plaintiffs’ abuse of process claim. (
Id
.). Indeed, courts find plain legal
prejudice exists “where dismissal results in stripping a defendant of an absolute defense.”
Rosenthal
,
Pomesky’s argument about Plaintiffs’ attempt to avoid legal precedent for the abuse of process claim is irrelevant for the 41(a)(2) analysis. Plaintiff does not seek to dismiss the abuse of process claim. Plaintiffs seek to dismiss their inconsistent claims and continue with litigation. This is a sufficient explanation for the request for dismissal and weighs in favor of Plaintiffs.
d. Whether Motions for Summary Judgment Were Filed
As for the fourth and final factor, the existence of a pending motion for summary judgment
is a factor for consideration, but its existence does not necessitate a finding of plain legal prejudice.
Rosenthal
,
Dismissal without prejudice under Rule 41(a)(2) and Rule 21 is appropriate unless Defendants suffer plain legal prejudice. The Grover factors to determine whether there is legal prejudice favor granting Plaintiffs’ Motion. Indeed, Defendants filed motions for summary judgment (ECF Nos. 30, 33, 35), but the effort and expense of Defendants will not go to waste as only three claims will be dismissed, and Plaintiffs’ goal is to continue litigating the remaining *15 claims. Plaintiffs have also shown no lack of diligence in prosecuting the case. Further, Plaintiffs’ explanation for requesting a dismissal of the federal claims is sufficient: because of pleading in the alternative and realizing after discovery that the inconsistent claims are weak, Plaintiffs seek to dismiss those claims and pursue the strongest claims. This conserves this Court’s and the parties’ resources.
The Motion to Dismiss the federal claims is GRANTED.
B. Remand of State Claims
Plaintiffs also request that this Court remand all the remaining state law claims. (ECF No.
46 at 4). In support of this request, Plaintiffs reference the Sixth Circuit precedent that “[w]hen all
federal claims are dismissed before trial, the balance of considerations usually will point to
dismissing the state law claims, or remanding them to state court if the action was removed.”
Gamel v. City of Cincinnati
,
In one of the remaining state law claims, claim ten, Plaintiffs allege civil liability for criminal acts under O.R.C. § 2307.60. Specifically, the complaint lists the criminal acts alleged are in violation of: O.R.C. § 2905.12 (coercion); O.R.C. § 2921.45 (interfering with civil rights); and O.R.C. § 2951.52 (using sham legal process). (ECF No. 2 ¶¶ 136–40). Pomesky urges this court to find it has original jurisdiction since claim ten, in part, relies on violations of constitutional civil rights pursuant to O.R.C. § 2921.45. Under O.R.C. § 2921.45(A): “No public servant, under color of the public servant's office, employment, or authority, shall knowingly deprive, or conspire *16 or attempt to deprive any person of a constitutional or statutory right.” Pomesky’s concern is that litigating this claim is essentially litigating the § 1983 claims dismissed by this Court. (ECF No. 51 at 3–4).
Plaintiffs’ claim for civil liability for criminal acts including violation of civil rights
involves a federal question. Federal district courts have “original jurisdiction” over cases
presenting a federal question and occurs in “civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. This jurisdiction may also include “state-law
claims alone, because one or more of them ‘necessarily raise[s]’ a ‘substantial’ and ‘actually
disputed’ federal question.
Royal Canin
, 604 U.
S.
at 26 (quoting
Gunn v. Minton
,
Regardless of Plaintiffs’ current intention, “the determination of jurisdiction is based only
on the allegations in the plaintiff ’s ‘well-pleaded complaint’. . . . That longstanding rule makes
the complaint—the plaintiff ’s own claims and allegations—the key to ‘arising under’
jurisdiction.” . at 26;
see, e.g
.,
Majeske v. Bay City Bd. of Educ
.,
Accordingly, this Court finds inapplicable the discretion to “decline to exercise supplemental jurisdiction” because it has not “dismissed all claims over which it had original jurisdiction.” 28 U.S.C. § 1367(c)(3). The motion to remand is thus DENIED.
IV. CONCLUSION
For the reasons set forth above, Plaintiff’s Motion (ECF No. 46) is GRANTED in part and DENIED in part . The Motion is granted as to the request for voluntary dismissal. The following claims are hereby DISMISSED :
• Claim One for False Arrest under 42 U.S.C. § 1983;
• Claim Three for Malicious Prosecution under 42 U.S.C. § 1983; and • Claim Eleven seeking to hold Defendant The Board of Trustees for Perry Township, Stark, County, Ohio liable for Claim One and Claim Three under Monell and 42 U.S.C. § 1983. The Motion is denied as to the request to remand the remaining claims. This Court granted a motion to stay briefing on motions for summary judgment pending the resolution of Plaintiffs’ Motion. (ECF No. 48). Thus, the stay is LIFTED . To allow Defendants a chance to make any desired updates, the current Motions for Summary Judgment are DENIED as moot (ECF Nos. 30; 33; 35). Parties may refile or file a new/updated motion by no later than March 21, 2025. Response briefs are due by April 4, 2025 , and reply briefs is due by April 11, 2025.
IT IS SO ORDERED.
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE DATE: March 11, 2025