DECISION AND ORDER
BACKGROUND
This action, originally filed in the Texas State Court for Hidalgo County, arises out of injuries that resulted in the deaths of Jose Rodriguez and Juan Olivarez while they were employed by the defendant, Marks Brothers Pickle Company, Inc. In their original petition, plaintiffs, the surviving widоws and minor children of the decedents, alleged that the injuries were suffered as a result of an electrical shock from a faulty conveyor system. The complaint also charged that the decedents’ injuries were proximately causеd by the negligence of the defendant, entitling plaintiffs to compensatory damages for pain, suffering, mental anguish, and loss of consortium, companionship, and support. Finally, plaintiffs sought punitive damages for what they termed “a conscious indifference to the rights or welfare of the Decedents and and other persons similarly situated.” Plaintiffs’ Original Petition at 3.
On December 21, 1982, the action was removed, on the petition of the defendant, to the United States District Court for the Southern District of Texas, Brownsville Division. The parties apparently proceeded with discovery throughout the following nine months, during which several pretrial motions were filed, including defendant’s petition for a change of venue. On September 30, 1983, following a hearing оn the merits of that motion, District Judge Ricardo H. Hinojosa concluded that the convenience of the parties and witnesses and the interests of justice dictate that the case be transferred to this district for further proceedings.
On December 21, 1983, the plaintiffs, now proceeding before this Court, filed their motion for non-suit as to defendant Marks Brothers Pickle Company, Inc., “as grounds therefore that Plaintiff does not desire to prosecute this matter further against said Defendant.” Specifically, plaintiffs requested that this action be “dismissed without prejudice to Plaintiffs’ refiling it at Plaintiffs’ cost.” Plaintiffs’ Motion For Non-Suit (December 21, 1983). It is now clear that the defendant neither objected to the plaintiffs’ motion nor filed a formal stipulation for dismissal becаuse of plaintiffs’ representation that they no longer wished to prosecute this action. See Affidavit of Michael J. Hogan at 2 (March 9, 1984). On December 30, 1983, the Court granted plaintiffs’ motion, thus dismissing this case without prejudice.
On March 12, 1984, the defendant filed the present motion to vacate the Court’s dismissal order, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. In support of its motion, the defendant recounts the procedural history of this case to date and notes, in particular, that on February 7, 1984, thirty-eight days after the Court granted their motion for non-suit, these plaintiffs filed a second complaint, again in the Texas State Court for Hidalgo County, again naming Marks Brothers Pickle Company, Inc., as a defendant. A careful review of this second petitiоn demonstrates that with the exception of the naming of one Faustino Perez, allegedly an agent of Marks Brothers Pickle Company, Inc., as a party defendant, the allegations in the new action are practically identical to those in the original complaint. Indeed, a count-by-count comparison of the two peti
Defendant argues persuasively that by securing an order of non-suit from this Court and subsequently reinitiating their action under the guise of a “new” petition in the very state court from which the original case was removed, the plaintiffs have deprived the defendant of a fеderal forum and have plainly attempted to circumvent the ruling of Judge Hinojosa of the Southern District of Texas with respect to proper venue in this district. The defendant characterizes plaintiffs’ actions as
an obvious attempt to shop for a forum which could deprive the defendant of a good and valid defense under Wisconsin law which is that an employee’s exclusive remedy for recovery for compensation for injuries received in the course of his employment is limited to recovery under Worker’s Compensation Law. It is a blatant attempt to return to the Texas Circuit Court in the hope that Texas law will be applied rather than Wisconsin law.
Defendant’s Brief In Support of Motion to Vacate at 5 (Mаrch 12, 1984).
The defendant further contends that the representation made by the plaintiffs in support of their petition for non-suit— namely, that they no longer desired to prosecute this action against defendant Marks Brothers Pickle Company, Inc.—was a deliberate misrepresentation, intended only to induce the defendant not to oppose dismissal of the previous action without prejudice. Defendant seeks vacation of the Court’s December 30, 1983, order for non-suit and requests that it be granted leave to file a motion for summary judgment forthwith.
Pursuant to Local Rule 6.01, plaintiffs were afforded fourteen (14) days from receipt of defendant’s motion in which to file a responsive brief. In fact, some fifty (50) days have now passed since the mоtion to vacate was filed with this Court, and plaintiffs have yet to respond. Accordingly, the Court today resolves this pending matter based solely on the defendant’s motion and supporting brief and the various exhibits and affidavits appended thereto.
RULE 60(b) AND DEFENDANT’S REQUEST TO VACATE THE ORDER FOR NON-SUIT
As the defendant has stated in its supporting brief, Rule 60(b) of the Federal Rules of Civil Procedure empowers the district court to relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons, аmong others:
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... or
(6) any other reason justifying relief from the operation of the judgment.
This rule of equity is an attempt to strikе a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done. United States v. Southwest National Bank,
A motion under Rule 60(b) is addressed to the sound discretion of the dis
It is well established that the burden of proof as to these charges is upon the moving party and that the specific misconduct must be shown by clear and convincing evidence. Square Construction Company v. Washington Metropolitan Area Transit Authority,
As the Court has already indicated, the defendant’s motion papers describe a rather blatant misuse of the non-suit device prescribed by Rule 41(a)(2) of the Federal Rules of Civil Procedure. While plaintiffs’ intentions were unclear at the time they filed their motion, it is now sufficiently plain to the Court that their non-suit request was motivated by an interest in returning the prosecution of their claims to the Texas state cоurt in which they were first made. As the defendant has accurately observed, such an invocation of Rule 41(a)(2)—not to secure a tactical procedural advantage but instead to subject the opposing party to some substantive legаl prejudice—has been soundly condemned. In Kennedy v. State Farm Mutual Automobile Insurance Company,
Where a dismissal without prejudice would subject the defendant to substantial legal prejudice, as contrasted to mere inconvenience or vexation incident to defending a subsequent suit, permission to so dismiss should be denied. However, ordinarily the motive of the plaintiff in seeking to dismiss is not material, and the fact that a nonsuit may give the plaintiff some tactical procedural advantаge in the same or in some other forum is not grounds for refusing to allow the dismissal____
It is clear that plaintiff by her motion is seeking something quite different from a tactical procedural advantage. She desires to have her new forum apply to this casе another body of substantive law which would or might deprive the defendant of an apparently good defense at this forum. Thus, the shift of forum, if permitted, would or might seriously disadvantage the defendant, and the Court thinks that it would amount to legal prejudice to subjеct the defendant to the risk that plaintiff may succeed in*108 inducing the Georgia courts to refuse to apply Arkansas law to the policy in suit.
Similarly, in Home Owners’ Loan Corporation v. Huffman,
If it were demonstrated that the defendant would lose the advantage which it now has by a change of forum that might be reason for holding that the court abused its discretion by permitting a dismissal without prеjudice even had terms been imposed. In speaking of the result of a dismissal without prejudice by a plaintiff for the purpose of beginning a suit in another court, Judge Learned Hand in Young v. Southern Pac. Co., 2 Cir.,25 F.2d 630 , 632, said: “... [0]ne court is as good as another. But the situation changes when thеre is substantial doubt whether the courts will not apply different rules, and when the plaintiffs purpose is so to maneuver the litigation that the defendant will lose his existing advantage. The loss of the federal forum then becomes a grave prejudice, quite as much as, and indeed more than, the expense and delay in trying the suit up to decree, or even the failure of a cross-bill.”
In this ease, the grave prejudice that the defendant would suffer if plaintiffs’ abuse of the non-suit device went unremedied would inhere in the nonapplication of the Wisconsin Worker’s Compensation Act, Wis.Stat. § 102.01 et seq., in a non-federal forum. Indeed, this defendant’s right to present its case in this Court, obliged to apply Wisconsin law, was guaranteed by Judge Hinojosa’s decision of September 30, 1983, to transfer venue to the Eastern District of Wisconsin. Plaintiffs’ apparent attempt to undermine this right by misrepresenting their intentions as to further prosecution convinces the Court that the defendant’s present motion should now be granted.
Accordingly, for the reasons stated herein, the Court hereby VACATES its order of non-suit of December 30, 1983, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, and reopens this case. Pursuant to the defendant’s stated intention to file a motion for summary judgment, the Court hеreby ORDERS that any dispositive pretrial motions be filed no later than Tuesday, May 29, 1984. The parties are to follow Local Rule 6.01 in briefing any such motions.
Notes
. In Wisconsin, an employee’s exclusive remedy against his or her employer for injuries incurred in the scope of employment is under the state’s Worker’s Compensation Act, Wis.Stat. § 102.01 et seq. Since, at the time of the decedents' injuries, their employer, Marks Brothers Pickle Company, Inc., was a party to a contract for worker's compensation insurаnce in the state, this defendant contends that plaintiffs’ recovery is expressly limited by the statute. The defendant further maintains that it is for this reason that plaintiffs seek the application of Texas Law, "which arguably permits recovery against an employer not a subscriber within the state of Texas.” Defendant’s Motion to Vacate Dismissal at 2 (March 12, 1984).