United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT.
the Court is the Motion for Summary Judgment (Doc.
12) filed by Pinnacle Entertainment, Inc.
("Defendant") and the Motion for Voluntary
Dismissal and Motion to Withdraw
Supplemental and Amending Petition (Doc. 29) filed
by Rosie Mathes ("Plaintiff). Each party filed
responses, (Docs. 25, 30), and replies, (Docs. 27,
31). For the following reasons, Plaintiffs
Motion for Voluntary Dismissal is
GRANTED WITH PREJUDICE. Plaintiffs
Motion to Withdraw its Supplemental and Amending
Petition and Defendant's Motion for
Summary Judgment are DENIED AS
12, 2016, Plaintiff filed suit in Louisiana state court,
alleging that she slipped and fell on a wet bathroom floor at
the L'Auberge Casino & Hotel in Baton Rouge,
Louisiana. (Doc. 1-2 at p. 1). She alleges that due to the
fall she hit her head and was knocked unconscious.
Id. at p. 2. Plaintiff named Pinnacle d/b/a LAuberge
Casino & Hotel Baton Rouge, Pinnacle's alleged
insurer, ABC Insurance Company, and Jane Doe, a Pinnacle
employee as defendants. Id. at p. 1. On August 10,
2016, Pinnacle removed the matter to the Court, alleging
diversity jurisdiction under 28 U.S.C. § 1332. (Doc. 1).
Pinnacle filed an Answer on August 29, 2016, denying the
allegations in the Petition. (Doc. 3).
January 31, 2017, Plaintiff filed a Supplemental and Amending
Petition for Damages, seeking to name PNK (Baton Rouge)
Partnership ("PNK") and its insurer, Zurich
American Insurance Company ("Zurich") as
defendants, and to correctly identify defendant "Jane
Doe" as Cionne Stewart. (Doc. 10 at p. 1-2). This
Petition, however, failed to adequately allege the
citizenship of the parties, and the Magistrate Judge issued
an Order on February 10, 2017, requiring Plaintiff to file a
proposed pleading that properly set forth the citizenship of
all parties. (Doc. 16). In the meantime, on February 3, 2017,
the Defendant filed a Motion for Summary Judgment. (Doc. 12).
March 17, 2017, rather than file a proposed pleading,
Plaintiff filed a Motion to Remand for lack of subject matter
jurisdiction, or in the alternative to allow Plaintiff to
voluntarily withdraw her Supplemental and Amending Petition
for Damages without prejudice because the Court had not
granted her request to add PNK, Ms. Stewart, or Zurich as
defendants. (Docs. 24 at p. 1 and 24-1 at p. 9).
Alternatively, Plaintiff asked the Court to allow her to
voluntarily dismiss this case without prejudice. (Doc. 24 at
p. 1). The Magistrate Judge denied these motions without
prejudice because Plaintiffs requests were inherently
contradictory. (Doc. 28 at pp. 4-5). The Magistrate Judge
explained that because Ms. Stewart was not yet a party to the
case it was premature to seek a remand based on her
non-diverse citizenship. Id. at p. 5. Further, if
the Court were to grant the Motion to Withdraw, there would
be no basis for Plaintiffs Motion to Remand and if the Court
granted the Motion for Voluntary Dismissal, the pending
motions, including Plaintiffs Motion to Remand and Motion to
Withdraw Supplemental and Amending Petition, would be
terminated. Id. The Magistrate Judge thus ordered
Plaintiff to file a motion for voluntary dismissal within
seven days, if she wished to dismiss the case. (Doc. 28 at.
p. 6). Plaintiff then filed a Motion for Voluntary Dismissal
with or without prejudice and a Motion to Withdraw its
Supplemental and Amending Petition on April 27, 2017. (Doc.
29). Plaintiff filed these motions because Pinnacle has
asserted that it is not the proper party in this case because
the L'Auberge Casino & Hotel is owned by PNK, and not
Pinnacle. Id. at p. 1.
Rule of Civil Procedure 41(a)(2) provides that after a
defendant files an answer or motion for summary judgment
"an action may be dismissed at the plaintiffs request
only by court order, on terms that the court considers
proper." The purpose of authorizing a court to condition
a voluntary dismissal on proper terms is "to prevent
unfair prejudice to the other side in the case." In
re FEMA Trailer Formaldahyde Prod. Liab. Litig., 628
F.3d 157, 162 (5th Cir. 2010). A decision as to whether to
grant a dismissal under Rule 41(a)(2) lies within the sound
discretion of the district court. Davis v. Huskipower
Outdoor Equip. Corp., 936 F.2d 193, 199 (5th Cir. 1991).
the factors a court must consider when adjudicating a motion
for voluntary dismissal is whether the plaintiff seeks a
dismissal with or without prejudice. Schwarz v.
Folloder, 767 F.2d 125, 129 (5th Cir. 1985). If a party
seeks a dismissal without prejudice, the motion "should
be freely granted unless the nonmoving party will suffer some
plain legal prejudice other than the mere prospect of a
second lawsuit." Elbaor v. Triparth Imaging,
Inc., 279 F.3d 314, 317 (5th Cir. 2002). "Typical
examples of such prejudice occur when a party proposes to
dismiss the case at a late stage of pretrial proceedings, or
seeks to avoid an imminent adverse ruling, or may on
re-filing deprive the defendant of a limitations
defense." In re FEMA Trailer, 628 F.3d at 162
(internal citations omitted).
where a plaintiff seeks a dismissal with prejudice
"[t]he situation is different[.]" Schwarz,
767 F.2d at 129. That is because "[d]ismissal of an
action with prejudice is a complete adjudication of the
issues presented by the pleadings and is a bar to a further
action between the parties." Id. (quoting
Smoot v. Fox, 240 F.2d 301, 303 (6th Cir.
1964)). As a result, some courts hold that a motion for
voluntary dismissal with prejudice must be granted.
Id. at n. 5; see also 9 Charles Alan Wright
& Arthur R. Miller, Federal Practice & Procedure
§ 2367 (3d ed. 2008) (collecting cases). Although the
U.S. Court of Appeals for the Fifth Circuit has not
specifically held that courts are required to grant voluntary
motions to dismiss with prejudice, it has made clear that
"no matter when a dismissal with prejudice is granted,
it does not harm the defendant: The defendant receives all
that he would have received had the case been
seeks a voluntarily dismissal either with or without
prejudice. (Doc. 29 at p. 1). Apparently, Plaintiff consents
to a full judgment against itself, which will bar future
litigation against Defendant in this matter. See
Schwarz, 767 F.2d at 129. Defendant, nonetheless, argues
that a dismissal without prejudice would be inappropriate.
(Doc. 30 at pp. 3-4). Defendant contends that it will be
prejudiced because it will face the prospect of a second
lawsuit. (Doc. 30 at p. 3). But a dismissal with prejudice
bars such a suit. See Schwarz, 767 F.2d at 129.
Defendant also argues that it will be prejudiced because it
has already expended significant time and resources filing
pleadings and memoranda, and there has been substantial
discovery. Id. But if the Court denies Plaintiffs
motion for dismissal, Defendant would be required to expend
even more time and resources defending this suit in federal
court. Moreover, when an order of dismissal is entered, a
"defendant receives all that he would have received had
the case been completed." See Schwarz, 767 F.2d
also argues that it will be prejudiced by a dismissal because
Plaintiff is attempting to avoid an imminent adverse ruling
on the pending Motion for Summary Judgment. Id. at
pp. 3-4. A dismissal with prejudice, however, has the same
effect as a ruling in favor of Defendant's Motion for
Summary Judgment. Indeed, both qualify as a complete
adjudication of the dispute. See Schwarz, 767 F.2d
at 129. The Fifth Circuit has also made clear that even if a
defendant prefers a judgment on the merits because it
believes that would vindicate its rights more than a
voluntary dismissal, "a defendant is entitled only to
the protection of its legal rights, not to a cleansing of the
stench emitted by the plaintiffs complaint."
Id. at 130. Defendant is thus not prejudiced by the
Court's decision to forgo evaluating the merits of its
Motion for Summary Judgment.
Defendant argues that a voluntary dismissal would result in
the state court claims against PNK, Ms. Stewart, and Zurich
moving forward and that Defendant may again be forced to seek
to remove such claims to this Court for a second time,
resulting in a "lengthy and circuitous process[.]"
(Doc. 30 at pp. 4-5). However, when evaluating a motion for
voluntary dismissal, the crucial question is whether the
defendant-not some other party-will suffer some plain legal
prejudice. See In re FEMA Trailer, 628 F.3d at 162;
Schwarz, 767 F.2d at 129. PNK, Ms. Stewart and
Zurich are not parties to the action subjudice
because the Court has not allowed Plaintiff to file its
proposed Supplemental and Amending Petition for Damages.
(Doc. 28 at p. 5). Whether such entities will suffer ...