Johnson v. Pharmacia & Upjohn Co.

192 F.R.D. 226, 1999 U.S. Dist. LEXIS 21357, 1999 WL 1566642
CourtDistrict Court, W.D. Michigan
DecidedDecember 14, 1999
DocketNo. 4:99-CV-96
StatusPublished
Cited by7 cases

This text of 192 F.R.D. 226 (Johnson v. Pharmacia & Upjohn Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Pharmacia & Upjohn Co., 192 F.R.D. 226, 1999 U.S. Dist. LEXIS 21357, 1999 WL 1566642 (W.D. Mich. 1999).

Opinion

OPINION

QUIST, District Judge.

Background

The Court has before it Plaintiff Ronda Johnson’s (“Johnson”) Motion for Voluntary Dismissal Without Prejudice or in the Alternative, for Leave to Amend Dismissing Without Prejudice Statutory Civil Rights Claims. Johnson filed this action in Kalamazoo County Circuit Court on July 6, 1999, against Defendant Pharmacia & Upjohn Company (“Pharmacia”). Pharmacia removed the case to this court on July 27, 1999, on the basis of diversity jurisdiction. On October 12, 1999, the Court issued an Opinion and Order denying Johnson’s motion to amend her complaint to add certain individual defendants to her claim under the Michigan Persons with Disabilities Civil Rights Act and the Michigan Elliott^Larsen Civil Rights Act and to remand the case to state court. The Court denied the motion because it found that Johnson sought to amend solely for the purpose of destroying diversity in order to deprive the Court of jurisdiction over the matter. Following the Court’s denial of Johnson’s motion, Johnson filed a suit in the Kalamazoo County Circuit Court against the individual defendants. Johnson now seeks to voluntarily dismiss this ease without prejudice pursuant to Fed. R.Civ.P. 41(a)(2) in order to consolidate her claims in this case with those in the state court action.

Discussion

Johnson brings her motion pursuant to Rule 41(a)(2), which provides, in relevant part:

By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions [228]*228as the court deems proper----Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

Fed.R.Civ.P. 41(a)(2).

Rule 41(a)(2) “allows plaintiffs to freely dismiss their suits, subject to court approval, provided the dismissal does not prejudice any party.” Templeton v. Nedlloyd Lines, 901 F.2d 1273, 1274 (5th Cir. 1990) (per curiam). Whether to grant a dismissal pursuant to Rule 41(a)(2) is a matter within the sound discretion of the district court. See Garner v. Missouri-Pacific Lines, 409 F.2d 6, 7 (6th Cir.1969). Generally, “a district court should grant a motion for voluntary dismissal unless a defendant can show that it will suffer some plain legal prejudice as a result.” Waller v. Financial Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987). “Plain legal prejudice” does not result simply because the defendant faces the prospect of defending a second lawsuit, see Grover by Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir.1994), nor does it result simply because the plaintiff may gain some tactical advantage in a future lawsuit, see Davis v. USX Corp., 819 F.2d 1270, 1275 (4th Cir. 1987).

In Grover by Grover, the Sixth Circuit identified four factors which a court should consider in determining whether to grant a voluntary dismissal: (1) the amount of time and effort the defendant has incurred in preparing for trial; (2) any lack of diligence on the part of the plaintiff in prosecuting the action; (3) the plaintiffs failure to explain the need for a dismissal; and (4) whether the defendant has filed a motion for summary judgment. See Grover by Grover, 33 F.3d at 718. Given the circumstances of this case, none of these factors, either alone or in combination with one another, weighs in favor of denying the motion.

The first, second, and fourth factors support Johnson’s request for dismissal because the case is still in its early stages and minimal discovery has occurred, there was no excessive delay or lack of diligence by Johnson in bringing her motion, and no summary judgment motion has been filed. As for the third factor, Johnson has furnished an adequate explanation for,the need to voluntarily dismiss her case: the consolidation of this action with the state court action in one forum.

The Court agrees with Pharmacia that the obvious reason Johnson seeks a voluntary dismissal is to defeat federal jurisdiction. In reviewing the issue, the Court has found a few cases supporting Pharmacia’s position that Johnson should not be permitted to use a voluntary dismissal to manipulate federal jurisdiction and deprive Pharmacia from exercising its statutory right to have the case heard in this Court. See Nogueras-Cartagena v. Rosello-Gonzalez, 182 F.R.D. 380, 386 (D.P.R.1998) (stating that “[j]ust as a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint, logic compels us to conclude that a plaintiff may not defeat removal jurisdiction by voluntarily dismissing one of the parties” (citation omitted)); Hinkle’s Jeep Sales, Inc. v. Villa Enters., Inc., 90 F.R.D. 49, 52 (S.D.Fla.1981) (“The Court, however, agrees with the commentators that the Rules should be further amended to curb the right of voluntary dismissal when such a dismissal is a tactical move to frustrate removal and prejudices a defendant’s statutory right to choose the forum”). However, the overwhelming majority of cases that have considered the issue have held that the fact that a voluntary dismissal will destroy federal jurisdiction is insufficient to constitute prejudice to a defendant. See Templeton, 901 F.2d at 1276 (“The fact that [the defendant] faces the prospect of trial in state court is also insufficient to demonstrate legal prejudice”); Davis, 819 F.2d at 1275 (stating that “the mere prospect of the transfer of litigation to state court was an insufficient basis for denying the motion for voluntary dismissal”); Mercer Tool Corp. v. Friedr. Dick GmbH, 175 F.R.D. 173, 175 (E.D.N.Y.1997) (mem.op.) (noting that “courts have granted a plaintiffs motion for voluntary dismissal in order to join a non-diverse party, thereby defeating the court’s subject matter jurisdiction”); Katzman v. American Airlines, Inc., No. 97 CIV. 8321, 1997 WL 752730, at *1 (S.D.N.Y. Dec.4,1997) (noting that “even when plaintiffs seek discretionary dismissal under Rule 41(a)(2), nearly all courts grant those dismissals when defendant’s only argument against dismissal is that the plaintiff manifestly seeks to defeat [229]*229federal jurisdiction”); Der v. E.I. Dupont de Nemours & Co., 142 F.R.D. 344, 346 (M.D.Fla.1992) (“[ajssuming arguendo that the plaintiffs would gain a tactical advantage by defeating diversity jurisdiction, a tactical advantage is no bar to a voluntary dismissal”); Galva Union Elevator Co. v. Chicago & N.W. Transp. Co., 498 F.Supp. 26, 27 (N.D.Iowa 1980) (rejecting the defendant’s contention that the plaintiffs desire to add nondiverse defendants in state court action to defeat federal jurisdiction required denial of motion for voluntary dismissal); Nance v. Jackson, 56 F.R.D. 463, 471 (M.D.Ala.1972) (stating that dismissal under Rule 41(a)(2) would be proper even though it would defeat removal jurisdiction).

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192 F.R.D. 226, 1999 U.S. Dist. LEXIS 21357, 1999 WL 1566642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-pharmacia-upjohn-co-miwd-1999.